Why Can’t an Ex-Catholic Marry Validly Outside the Church?

Q: Over ten years ago, there were two weddings of ex-Catholic friends outside the Church that I decided to attend, because I considered their membership in other Christian denominations to be a formal renunciation of the Church.  I figured that the weddings were valid in the eyes of the Church because an ex-Catholic isn’t a Catholic any more, and so they weren’t obliged to marry in accord with canonical form.

But then Pope Benedict XVI changed the rules regarding the canonical form of marriage in 2009, to remove the exception for ex-Catholics who had formally renounced the Church.  Was this change retroactive?

Since they were married outside the Church prior to 2009, and with “formal renunciation” of their Catholic faith by way of being baptized into another Christian faith, are their marriages valid?  Or do ALL marriages of Catholics and ex-Catholics now require canonical form, binding on ALL baptized Catholics? –Ann Marie

A: Readers may already be feeling hopelessly confused about this question.  What 2009 change in the law is Ann Marie talking about, and how did it affect lapsed Catholics who marry in non-Catholic wedding ceremonies?  Let’s walk through this step by step, and we’ll see that this scenario is unfortunately very common, but the current law is at the same time surprisingly simple.

First of all, as has been discussed so many times before in this space, Catholics are required by law to marry in accord with canonical form.  This means, in a nutshell, that they must marry in a Catholic wedding before a Catholic cleric, with two witnesses, in a ceremony that is in accord with the liturgical books (c. 1108).

That said, it is possible for a Catholic to obtain from the diocesan bishop a dispensation from canonical form in advance (c. 1127.2).  This dispensation would enable the Catholic to marry in a non-Catholic wedding ceremony, and the marriage would nonetheless be considered valid in the eyes of the Church.  As was discussed in “Can a Catholic Ever Get Married in a Non-Catholic Church?” such a dispensation is often granted in cases where one of the spouses is a non-Catholic, and that spouse wants the wedding be celebrated by a non-Catholic minister who is a close friend or family member.  Another common reason for dispensing a Catholic from canonical form focuses on maintaining harmony with relatives of a non-Catholic spouse, who can at times be vehemently opposed to attending a Catholic wedding.  (See also “When Can You Get a Dispensation, and Who Can Grant It?”)

So far, so good.  But prior to 2009, there was a loophole in the Code of Canon Law (which had been promulgated in 1983) that provided an exception to the requirement of canonical form.  Canon 1117 used to state that the canonical form for marriage must be observed by all Catholics, unless they had defected from the Catholic Church “by a formal act.”  In other words, if you were an ex-Catholic who had left the Church “by a formal act,” the law asserted that you weren’t required to observe the canonical form for marriage.  You could thus get married in a non-Catholic ceremony, without getting any dispensation, and the Church would regard your marriage as valid—because after all, you weren’t a Catholic any more!  And if you were no longer a Catholic, the Code of Canon Law didn’t apply.

This loophole was discussed at length in “Do Lapsed Catholics Marry Validly Outside the Church?” which was written back in 2007, when the exception still existed.  And as was noted in that piece, the notion of defecting from the Church by a formal act might, on the surface, seem quite clear … but in practice, it constantly created confusion for both the ex-Catholics themselves and canonists too.

For example, if a Catholic simply stops attending Mass and receiving the sacraments, does that constitute defection by a formal act?  Presumably not, since there’s nothing “formal” about it.  But what if a Catholic stops attending his Catholic parish, and begins attending a non-Catholic church on Sundays?  Note that you could very well begin to frequent a new church, without actually doing any sort of official paperwork to join that faith—so is that a formal act?  Lots of sincere people answered this question very differently.

So at this point the issue was already confusing to people, but it got even more complicated.  In many cases, a Catholic might stop attending Mass, and then “officially” become a member of a different, non-Catholic faith, perhaps by signing some paperwork and/or going through a ceremony in that church indicating new membership.  This certainly may sound like “a formal act,” except that the formality in this scenario involved not leaving the Catholic Church, but joining the non-Catholic faith.  Did this suffice?  Many canonists thought so, but officials in Rome disagreed.  After all, in this sort of situation you could become quite active in a non-Catholic church, without your Catholic parish priest having the slightest idea where you were or what had happened to you.  For this reason, it was concluded that “just” joining a different religion (as Ann Marie’s relatives did) was insufficient: you somehow had to notify Catholic officials that you declared yourself no longer to be a Catholic.  But needless to say, there is no established procedural mechanism to effect this, so your typical ex-Catholic had no idea what he was supposed to do.

Unfortunately, it got worse.  In some European countries (like Germany, for instance), at tax-time every tax-paying citizen is obliged to declare his religious affiliation—and he then pays a small percentage of his income to that faith, in order to support it.  In these countries this tax is the chief source of income for the Catholic Church, as well as for other religions.  But financially strapped citizens knew that if they claimed “no religious affiliation,” they wouldn’t be forced to pay anything—and so in order to avoid the mandatory fee, many Catholics began claiming that they weren’t members of any religion at all.  Quite often they viewed this simply as a bureaucratic sleight-of-hand, which would save them some money.  They never intended, by making this statement to government tax-collectors, to declare officially that they were no longer Catholic!

At the same time, however, there were genuine ex-Catholics who claimed that when they made this official declaration to the government at tax-time, it constituted the “formal act” par excellence, and everyone should understand thereby that they were no longer members of the Catholic Church.  They thus concluded that they were not bound by canon 1117, and figured they could marry in a non-Catholic ceremony without the Catholic Church considering it invalid.

What a mess it all was!  The “formal act” exception was proving completely unworkable.  This is why then-Pope Benedict XVI decided in 2009, with his motu proprio letter Omnia in mentem, to eliminate the exception from the law completely.  This was already discussed in “How Often Does the Pope Change Canon Law?” but in short, canon 1117 was reworded so that it no longer matters if you’ve managed to leave the Catholic Church “by a formal act” or not—you are still bound to observe the canonical form for marriage, so far as the Catholic Church is concerned.

Effectively this means that the Church now holds that everyone who was baptized a Catholic, or received into the Catholic Church after baptism in another Christian denomination, must marry in accord with canonical form (or be dispensed from this requirement in advance, as discussed above), or else the wedding is invalid.  This answers part of Ann Marie’s question.

Benedict XVI explained clearly that his motivation for changing the law in 2009 was simply that its implementation proved too confusing:

Experience, however, has shown that this new law gave rise to numerous pastoral problems. First, in individual cases the definition and practical configuration of such a formal act of separation from the Church has proved difficult to establish, from both a theological and a canonical standpoint. In addition, many difficulties have surfaced both in pastoral activity and the practice of tribunals…. The new law also made difficult the return of baptized persons who greatly desired to contract a new canonical marriage following the failure of a preceding marriage. (Omnia in mentem, paragraph 6, emphasis in original)

That last sentence merits a closer look, because it highlights an important pastoral issue that frequently arises in the Church’s dealings with Catholics who abandon the faith, and then later return to it.  What if an ex-Catholic marries a non-Catholic outside the Church, and the marriage fails?  If the ex-Catholic then wants to be Catholic again, what does the Church have to say about the validity of that non-Catholic marriage?  This sort of situation occurs far more often than many people think!

Let’s say that Matthew was raised Catholic, but as an adult he falls in love with Emily, a Lutheran woman who is divorced.  They could conceivably marry in the Catholic Church, if Emily could get her first married annulled; but let’s imagine that Emily isn’t interested, as she sees the Catholic Church’s annulment process as merely a lot of time-consuming hoops which she’s being told she must pointlessly jump through.  Matthew and Emily are thus unable to marry in the Church; but then Matthew decides to become a Lutheran and marry Emily in a Lutheran wedding ceremony.  If Matthew were to ask, the Catholic Church would tell him that his marriage in invalid—but since he’s joined the Lutherans, he doesn’t particularly care what the Catholic Church thinks any more.

Now imagine that Matthew and Emily break up after a couple of years, and get a divorce.  After some soul-searching, Matthew appreciates that he only became a Lutheran because of Emily, and since she’s no longer in the picture, he now wants to return to the Catholic Church.  Let’s say that Matthew views his brief membership in a Lutheran church to have been an aberration, and intends to take his Catholic faith much more seriously in the future.

Now if Matthew and Emily had married in a Lutheran ceremony after 2009, when the “formal act” exception no longer existed, it would be relatively clear to everyone that since Matthew was baptized a Catholic, their marriage was invalid due to lack of canonical form.  And Matthew could presumably obtain an annulment fairly easily—enabling him to marry someone else validly in a Catholic ceremony, if he wishes.  In fact, it could be that in his diocese, Matthew’s marriage could be declared null by his parish priest, without even needing to approach the marriage tribunal (see “Why Can a Parish Priest Annul This Marriage?”).

But here’s the irony: if Matthew’s marriage outside the Church had taken place before canon 1117 was changed in 2009, would he have been considered to have left the Church “by a formal act,” and thus have been able to marry validly outside the Church?  As we’ve already seen, the practical application of canon 1117’s exception clause was unclear and problematic; but the general consensus of church officials would have been no.  For this reason, after his divorce from Emily and his return to the Catholic Church, Matthew would have been able to get the marriage annulled for exactly the same reason: lack of canonical form.  But it might have been far more difficult and time-consuming, as  the canonists in the marriage tribunal (as well as Matthew’s parish priest) could conceivably have had disagreements among themselves as to whether or not Matthew’s membership in a Lutheran parish had constituted a defection from the Catholic Church “by a formal act.”  Benedict XVI’s reasons for eliminating the “formal act” exception from canon 1117 were well founded!

Without knowing every single detail, it would appear that the ex-Catholic friends of Ann Marie were in a similar situation.  Even though they left the Church before 2009, it doesn’t seem that they defected “by a formal act” as canon 1117 used to require.  This in turn means that they were still required to marry in accord with canonical form, even though they had left the Church; and so if they were to ask the Catholic Church today for an annulment, it looks like they would definitely get it.  The end result, in other words, would be exactly the same—minus all the confusion.

Note that Ann Marie mentioned that she “decided to attend [these weddings], because [she] considered their membership in other Christian denominations to be a formal renunciation of the Church.  [She] figured that the weddings were valid in the eyes of the Church…”  In other words, Ann Marie didn’t want to attend a non-Catholic wedding of an ex-Catholic, if she knew that wedding would be invalid (something discussed in more detail in “Can I Attend the Marriage of a Catholic Outside the Church?”).  While Ann Marie was trying to act in accord with Catholic theology, it appears that she made a good-faith error—which incidentally highlights the difficulties that were inherent in that “formal act” exception formerly found in canon 1117.

Benedict XVI’s change in the law was not retroactive.  Since it involved merely a procedural issue and not a timeless theological matter, there is no inherent contradiction in the notion that before 2009 the Church permitted something which it no longer permits today.  But as we’ve already seen, most of the time the end result would be the same either way: the ex-Catholic is usually considered to have not met the definition of defecting from the Church “by a formal act,” and therefore is still a Catholic—making his/her marriage outside the Church invalid.  Ann Marie now has answers to all her questions.

Hopefully it is clear that when Pope Benedict changed the law in 2009, he wasn’t trying to punish Catholics who leave the Church.  On the contrary, his change in canon 1117 makes everything much clearer, and if perhaps the ex-Catholic later decides to return to the faith and requests an annulment, everyone involved in the process now understands that it should be granted.

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