Opinion

Pope Francis ‘sounds like a no-fault divorce lawyer’ in speech to canon law experts

The Pope appears to think it is problematic for the children to observe a parent refraining from receiving Communion who is manifestly in an adulterous relationship.
Tue Mar 2, 2021 - 12:10 pm EST
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March 2, 2021 (LifeSiteNews) — Every year, the Pope gives an address to judges of the Tribunal of the Roman Rota to which any marriage annulment case could be appealed. This year, Pope Francis sounds like a no-fault divorce lawyer when he raises concerns about the defendant “who does not accept the declaration,” and says that children “should not be treated as a means of blackmail between divided parents.”

In no-fault divorce, the defendant who wants to keep an intact home is criticized for being controlling and not accepting the divorce. The civil authorities don’t care about defendants’ plea for the other spouse to cooperate with experts to help strengthen the marriage. Divorce courts generally demand that children go back and forth between separated households. The defendant who wants to protect children from this massive instability is shamed for not having an amicable divorce and accused of being the bitter partner using custody of children as emotional blackmail over the other person.

Most divorces are filed in the United States against defendants who have done nothing grave to justify temporary separation of spouses, let alone permanent separation. Pope Francis describes the pastoral care that he apparently thinks should occur after the “sole intervention of the civil authorities.” However, he never mentions the canonically required pastoral care that is necessary at the time of separation, prior to any intervention of the civil authorities (can. 1962). (See my article in Homiletic and Pastoral Review No Fault Divorce, Standing for Justice.) The Catholic Church never relegated to the civil authorities the competence to decide parties’ obligations toward each other and their children when they cease living together.

When a divorce petitioner abandons marriage, a serious Catholic defendant is very concerned about the moral and character formation of their children. What appear to government courts as ugly custody battles can actually be a defendant wanting to protect the children from the grave scandal the petitioning parent gives children by word and deed, teaching that divorce is the solution to dissatisfaction with marriage.

In his address, Pope Francis poses a question:

[H]ow can it be explained to children that, for example, their mother, abandoned by their father and often without the intention of establishing another matrimonial bond, may receive the Eucharist with them on Sunday, whereas their father, living with them or awaiting the declaration of nullity of marriage, cannot participate at the Eucharistic table?

The Pope appears to think it is problematic for the children to observe a parent refraining from receiving Communion who is manifestly in an adulterous relationship. However, the solution to this problem could be to tell the children the truth which respects their emotional response to divorce.

Children have a primal need to have an intact home with their married biological mother and father. Sometime this is disrupted through outside tragedy, but “when it happens because an adult places their own self-identification or their own sexual desire or their own romantic inclination over the rights of a child, that’s an injustice,” says children’s rights advocate Katy Foust. She is the Founder & Director of "Them Before Us.” If the Church were to instruct the children that the father who abandoned his marriage is choosing to disobey God’s plan for family, children could comfortably conclude that “God makes sense to me. What Dad did to our family feels unjust.”

We would expect a Pope to use precise terminology in this annual address because he is reading a statement prepared for canon lawyers who sit at the high Catholic appellate court. However, Pope Francis did something in his address that Pope Benedict never did. Pope Francis uses the secular meaning of the world family. He describes this painful human reality: “a family that splits up and another that, as a result, is formed, undermining the unity that was the joy of the children in the previous union.” Notice he says the children are in one family that splits and, thereafter, are in another family that is formed by their father, for example, and his new partner. It would be less confusing if the Pope had distinguished between a putative/surmised family and a true family.

What exactly is the Catholic understanding of the word family? The Catechism teaches, “A man and a woman united in marriage, together with their children, form a family” (CCC 2020). “[T]he family is the community in which, from childhood, one can learn moral values, begin to honor God, and make good use of freedom” (CCC 2207). Sadly, children who are born outside of a family are at a disadvantage, with less statistical chance of having moral values, honor for God, and proper use of freedom.

Are merely civilly married Catholics a true family? Are cohabiting parties who conceive and raise children, or a man and woman who were never validly married a true family? No. Though all marriages are supposed to be presumed to be valid until proven otherwise, we have a term for a marriage that is invalid because of the defective consent of one party: a putative marriage (can. 1061 §3).

It is uncommon, if not unprecedented, for the Pope’s address to the Rota to discuss the party who does not accept the decree of invalidity. Defending respondents may not be accepting the annulment because they found the process to be a disheartening sham. They might have undergone a process that was unjustly biased against the validity of marriage in tribunals which coach petitioners on getting an annulment based on psychological grounds.

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Several canonists who did their doctoral dissertation on psychological grounds for annulment report problems. In Catherine Godfrey Howell’s 2020 work “Consensual Incapacity to Marry,” she says, “The validity of American Jurisprudence is, then, potentially misleading” (p. 3). About Fr. Jaimes Ponce’s 2012 work “Lack of Internal Freedom on Matrimonial Consent: An Analysis of Rotal Jurisprudence and American Sentences,” his bishop of Colorado Springs, Most Rev. Michael Sheridan says, “The most overused and misused canon in the judgment of the validity of marriages by the tribunals of the United States is canon 1095, n 2."

Cardinal Raymond Burke, the former Prefect of the Supreme Tribunal of the Signatura, which is even higher than the Roman Rota, expressed concerns, too. In 2014, he said, “Sometimes when there are tribunals who are abusive and giving easy declarations of nullity, we hear from the other parties and their children.” The late Bishop Robert Morlino said, “The annulment processes in the United States, honestly, have been abused for many years” (September 1, 2015, EWTN, The World Over)

In his 1990 Address to the Roman Rota, Saint Pope John Paul II cautioned tribunals against misapplying psychological grounds for annulment: “A valid marriage, even one marked by serious difficulties, could not be considered invalid without doing violence to the truth and undermining thereby the only solid foundation which can support personal, marital, and social life.” In Pope Benedict’s 2009 Address, he reminded his audience about Saint Pope John Paul II’s interventions and said “no one can fail to see that there continues to be a concrete and pressing problem in this regard.”

As director of the non-profit organization Mary’s Advocates, Bai Macfarlane works to reduce unilateral no-fault divorce and support those who are unjustly abandoned who continue to remain faithful to their marriage. She is a graduate student at Franciscan University with the goal of earning her licentiate in canon law.


  canon law, communion for remarried, divorce, pope francis, roman rota

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