Divorce, Remarriage, and Excommunication

Q: My coworker is Episcopalian, but I discovered she was baptized Catholic, and her whole family left the Church when she was small. She said they became Episcopalians because her mother got divorced and then remarried outside the Church, and so she was excommunicated.

I told her that can’t be right, but she is adamant that the Catholic Church really excommunicated her mother. We heard so much about divorced and remarried Catholics during the recent Synod, but nobody indicated that they’re penalized like this… –Brad

A: Brad is correct that during the recent Synod of Bishops, no mention was ever made of Catholics being excommunicated for remarrying outside the Church after being divorced. That’s because there is no such sanction attached to divorce and remarriage. Still, Brad’s coworker isn’t necessarily wrong—it’s quite possible that her mother was excommunicated for remarrying after a divorce. What’s going on here?

First of all, let’s distinguish between an act that is morally wrong—sinful, in other words—and one that constitutes a crime under canon law. As was noted in “Canon Law and the Pope’s Butler,” there are many actions that are sinful, but they are not punishable under canon law as crimes. Lying, theft and adultery are all objectively evil actions, and moral theology teaches us that they are all sins if performed by someone who understands that they are wrong, and yet freely does them anyway. But lying, theft and adultery are not punishable under canon law as crimes. Think about it: if every sin were also a crime, we’d all be in hot legal water every time we went to confession!

Divorce and remarriage fits perfectly into this equation. The Catholic Church teaches that a valid marriage lasts until the death of one of the spouses—and thus it does not admit the possibility of leaving one’s spouse, and marrying another while the first is still living.

In his preaching Jesus unequivocally taught the original meaning of the union of man and woman as the Creator willed it from the beginning permission given by Moses to divorce one’s wife was a concession to the hardness of hearts. The matrimonial union of man and woman is indissoluble: God Himself has determined that “what therefore God has joined together, let no man put asunder” (Matt. 19:6). (CCC 1614)

Today there are numerous Catholics in many countries who have recourse to civil divorce and contract new civil unions. In fidelity to the words of Jesus Christ – “Whoever divorces his wife and marries another, commits adultery against her; and if she divorces her husband and marries another, she commits adultery” (Matt. 10:11-12). The Church maintains that a new union cannot be recognized as valid, if the first marriage was. If the divorced are remarried civilly, they find themselves in a situation that objectively contravenes God’s law. (CCC 1650)

This is why, as we saw in “Divorced Catholics and the Eucharist,” divorced and remarried Catholics (whose first married was never annulled) are not able to receive the Eucharist so long as they persist in living with the second spouse as man and wife—because they’re basically committing adultery. A Catholic who does this is thus engaging in an action that is morally wrong, even though it is not sanctioned under canon law as a crime.

Or is it? The mother of Brad’s coworker certainly thought it was a criminal act; she and her children became Episcopalians because she was convinced she had been excommunicated by the Catholic Church, for remarriage after divorce. Is it really possible she was merely mistaken about such a serious matter?

Not necessarily. While the current Code of Canon Law, promulgated in 1983, contains no sanction against divorced and remarried Catholics, the 1917 Code of Canon Law did. The former canon 2356 addressed the crime of bigamy.

Bigamists, that is, those who attempt another marriage—even if only a so-called civil marriage—while the first conjugal bond still exists, are ipso facto notorious; and if they scorn the warning of their Ordinary and persist in this illicit cohabitation, they are to be excommunicated… (My translation)

In other words, the previous Code of Canon Law, which was in force 1918-1983, held that a divorced and remarried Catholic could be excommunicated, if the Ordinary has warned him/her to leave the second spouse, and the warning has not been heeded. Note from the wording that there was nothing automatic about this: if the Ordinary never found out about a Catholic’s remarriage, and/or never issued a warning, there couldn’t have been any excommunication.

(By the way, what’s an Ordinary? The current canon 134.1 echoes the previous law: within a diocese, the term refers to the Bishop, his Vicar General, and any Episcopal Vicars he may have. So the term “Ordinary” has a broader meaning than just the Bishop, although it always includes him. See “The Eucharist and Sacramental Validity, Part II” for another context in which this terminology is used in the code.)

So, if the mother of Brad’s coworker had divorced her first husband and remarried outside the Church before the 1983 Code of Canon Law took effect, she was bound by the 1917 code. And if her Bishop (or one of the other diocesan officials covered by the term “Ordinary”) had warned her that she was committing bigamy and her cohabitation with the second husband had to cease, she may indeed have been excommunicated since she evidently refused to obey.

We don’t know the details of her particular situation, of course, so it’s impossible to say with any certainty whether she was sanctioned or not. It seems pretty safe to say, however, that pre-1983 diocesan Bishops didn’t run around searching for the divorce and remarriage records of all the Catholic faithful under their care, so issuing formal admonitions of the type required by the old canon 2356 certainly didn’t happen every time a Catholic remarried outside the Church! Still, if Brad’s coworker is absolutely positive that her mother was indeed excommunicated because of her remarriage, it would appear that in this case there was some sort of exchange between her and her Bishop—and she decided to disregard the Bishop’s message and continue living with her second husband.

If this was the law under the old code, why was it changed? The super-short answer to that question is that Pope John Paul II clearly didn’t care to include it in the new Code of Canon Law, which he promulgated himself. As Supreme Legislator (cf. c. 331), he had the authority to change the law—or not—as he saw fit.

But that doesn’t mean John Paul II was being completely arbitrary about this. The 1967 Synod of Bishops had compiled a list of principles which was to govern the experts involved in the revision of the Code of Canon Law. (Unfortunately, the documents of the 1967 Synod are not on the Vatican’s website, but a summary of the substance of the 1967 Synod can be read here.) One of the guiding principles concerned the reduction of the number of penalties in the code—and there’s no question that the number of excommunicable offenses contained in the 1983 code is much lower than before.

As most of us already know full well, the situation of Catholics who have divorced (or been divorced unwillingly), and later married again without obtaining an annulment of the first marriage, can, depending on the individual situation, be incredibly complicated. For that reason it makes sense that the 1917 sanction was eliminated from the 1983 code. The question of how to handle these cases is already tricky enough, without factoring potential sanctions into the equation. Brad’s coworker may be right, and her mother may have been excommunicated in decades past; but this no longer happens in the Church today.

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