What God Hath Joined Together

April 28, 1997|By PETER J. RIGA

HOUSTON -- As a former judge in a Roman Catholic marriage tribunal, I have deep sympathy for Sheila Kennedy, wife of Rep. Joseph Kennedy, who objected to his efforts to have their marriage annulled. Mr. Kennedy (for all the wrong reasons) called the whole process "Catholic gobbledygook" (then why did he go to such lengths to use it?). More than that, it is a scandal to both the Catholic and the non-Catholic world and it should be eliminated.

The process started from the firm (and Catholic) teaching that marriage between Christians is a holy and sacramental union before God which no human power can dissolve. Such marriage is holy, exclusive and indissoluble except by the death of one of the spouses ("until death do us part").

There is also the laudable teaching that certain conditions are required for there to be a sacramental marriage at all: The couple must be Christians; they must be only one man and one woman; and fully cognizant of what a marriage is and with the intent of entering into a loving, permanent and fruitful union (children). When one of these requisites is absent from the beginning there can be no marriage. Such a defect must be present at the time of the marriage, not after.

For example, a man enters a holy union. A few months later he is in an accident and is paralyzed from the waist down; that is, he is impotent. He remains married because at the time of the marriage, all requisites were there. If he had been absolutely impotent at the time of the marriage, there could be no marriage because he was incapable of conjugal love expressed sexually within marriage.

Take another example. A man enters marriage with the intent of still having relations with other women. There can be no marriage because a holy union is exclusive of all women except his wife.

The problem would be to prove his intent by his actions: e.g., did he have sex with other women from the beginning of the marriage? This should be distinguished from adultery, which is a fall after the marriage. Adultery seriously offends the marital covenant but does not invalidate a marriage originally entered with correct intent.

Lacking "due discretion"

All this may seem esoteric, but upon examination of what the marital covenant is and what is involved, it makes sense. We do not permit children to marry because they are too young and lack "due discretion." The same for the mentally incompetent -- although each case must be considered on its own merits to see if these persons have enough discretion to assume the responsibility of marriage.

Marriage tribunals are set up to examine the evidence with the presumption always for the marriage. It is up to the party challenging the marriage to come forward with positive proof that the essential elements of marriage were lacking at the time of the marriage. Traditionally, this has been very difficult to do and very few annulments were granted (about 500 a year in the United States).

However, in 1983 in the new Code of Canon (Church) Law, Canon 1095 added psychological immaturity of one or both spouses for annulments. The camel's nose was introduced into the tent.

Now, almost anything can lead to a finding that one or both spouses lacked "due discretion" to know and assume the obligations of marriage at the time of the exchange of vows. For all practical purposes we now have "Catholic divorce." Last year some 50,000 annulments were granted in the U.S.

The Sheila Kennedy affair is a perfect example. Two educated Christians were married in the church, and after 12 years and two children, the marriage is declared null and void "ab initio," from the beginning. This is a major scandal for the whole world.

Seventeen years of this nonsense should prove to the church that this canon has created far more evil than good. Even if there are cases of psychological immaturity, these should be taken care of in intense preparation for marriage.

Canon 1095 should be expunged from the Code of Canon Law because of the balance between the little good it does for a particular couple and the huge scandal it creates, not only for the faithful of the Catholic church but for non-Catholics as well.

Peter J. Riga is a lawyer.

Pub Date: 4/28/97

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