Legalize divorce, or improve marriage preparation?

Those who favor legalizing divorce often allege that the Catholic Church, in opposing it, is heartless toward those trapped in unhappy, abusive marriages. That the Church has her own solutions to these situations is seldom considered. For example, she is not opposed to declaring a marriage null and void if, after a thorough investigation, she is convinced that for one reason or another, the conditions required for a valid marriage were absent or incomplete.

According to a canon lawyer with extensive pastoral experience, many “marriages” fall into irreconcilable conflicts because there was no marriage to start with (i.e., despite all the ceremony, there was a “nonmarriage”). While many complain that proceedings declaring the nullity of marriage are tedious, most of the problems arise from defects in the judicial system as a whole (such as clogged court dockets), such that these problems would still exist even if divorce were to be legalized.

Then, there is little discussion of another solution provided for by the Code of Canon Law to unhappy, abusive marriages: Marriage preparation and discernment, to ensure that a couple do not get into a nonmarriage in the first place.

The Code of Canon Law has an entire chapter on “Pastoral Care and Those Things Which Must Precede the Celebration of Marriage,” which contains Canons 1063 to 1072. These oblige bishops to ensure that parishes under their jurisdictions offer pastoral care for married couples and couples contemplating marriage (Canons 1063-1064). Pastors are also required to investigate, before marrying a couple, to ascertain that nothing stands in the way of the valid and licit celebration of the marriage (Canons 1066-1070). To facilitate this, the faithful are obliged to reveal any impediments they know about to the pastor or local ordinary before the celebration of the marriage (Canon 1069).

Space does not permit a more detailed discussion of what these canons imply, but it is easy to see how pastors’ compliance with these requirements may prevent a lot of suffering. For example, a thorough premarriage investigation may reveal early on, even before the couple tie the knot, that one of them is suffering from a grave and incurable preexisting condition of psychological nature that prevents him/her from complying with the essential obligations of marriage (the famous “psychological incapacity” defined under Article 36 of the Family Code, which is the most commonly invoked ground for a declaration of nullity of marriage). The other party may then be spared from binding himself/herself in common life with someone suffering from “narcissistic personality disorder” or such other condition. Or, to give another example, the premarriage investigation may reveal that one of the parties is about to enter into the marriage under duress, undue influence, or without the proper discernment. An early detection of these would give the party a chance to get out of a disastrous marriage before it is too late.

At first glance, requiring these “premarriage screenings” seems to remove romance from marriage. But marriage should be seen not from a sentimental but from a realist point of view, rooted in how marriage is defined by nature as a permanent covenant between a man and a woman for the purpose of establishing conjugal and family life. As the Philippine Supreme Court wrote in Antonio vs Reyes (G.R. No. 155800, March 10, 2006), albeit in an obiter, “[m]arriage, in legal contemplation, is more than the legitimization of a desire of people in love to live together.” While love plays an important role, love exists in a real world, which includes the reality of what marriage is. Once this reality-based, or nature-based, notion of marriage is understood, the Church’s distinction between marriages and nonmarriages becomes logical, as well as the notion that marriage is monogamous and indissoluble, and the need for preparation, discernment and screening of those who enter into it.

I realize that a more rigorous process of marriage preparation and premarriage investigation does not guarantee an untroubled marriage—assuming that untroubled marriages indeed exist. I also realize that what I have just written raises more questions than answers. For example, there is the practical issue of whether a counterpart to the Code of Canon Law requirements on marriage preparation can be created under civil law, and how. Again, space constraints do not permit a thorough discussion of the issues in a single article.

Nevertheless, there should be more discussion of whether the Code of Canon Law provisions on “Pastoral Care and Those Things Which Must Precede the Celebration of Marriage” are being complied with, and how compliance can be improved. With canon law so precise in what constitutes a valid marriage, that nonmarriages come about demonstrates the lack of premarriage screening. The legalization of divorce, with its inherent moral problems and huge social costs, will not solve the problem of persons trapped in unhappy, abusive relationships if no efforts are taken to prevent couples from entering into nonmarriages in the first place, and to make sure that couples who do get married understand and willingly take on the essential obligations of marriage. On the other hand, improved marriage preparation can save many people from heartbreak (not to mention expenses from protracted court proceedings) and can create generations of happy families.

Clearly, improving marriage preparation deserves more attention than legalizing divorce.

Cristina A. Montes graduated from the Master en Derecho de la Globalizacion e Integracion Social program of the Universidad de Navarra in Spain. She also holds bachelor’s degrees in laws and in humanities (specializing in philosophy) from the University of the Philippines and the University of Asia and the Pacific, respectively.