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When Marriages Are Legal and Also Illegal: A Response to Cardinal Müller

Last month, on November 6, the great Vaticanist Sandro Magister published an interesting analysis about the prologue Cardinal Mueller wrote to Rocco Buttiglione’s book, Risposte amichevoli ai critici di Amoris Laetitia (Ares, 10 November 2017). There Magister shows the following:

[T]he cardinal … envisions – explicitly – only one case of possible access to communion for a Catholic who has gone on to a new union while the first spouse is still alive. And it is the case in which the first marriage, although it was celebrated in church, is to be considered invalid because of the absence of faith or of other requisite essentials at the moment of celebration, but such invalidity “cannot be proven canonically.”

In which case, Müller writes,

“It is possible that the tension seen here between the public-objective status of the ‘second’ marriage and the subjective fault could open, under the conditions described, the way to the sacrament of penance and to holy communion, passing through a pastoral discernment in the internal forum.”

Now, no one has pointed out that the case hypothesized here by Müller is the same one that Joseph Ratzinger had envisioned and discussed, both as theologian and as pope, he too admitting the possibility of access to the sacraments, always and in any case with a decision made “in the internal forum” with a confessor and with caution not to generate public scandal[.]

A careful examination of the documents of the Council of Trent and of the different opinions expressed in relation to Amoris Laetitia shows that this is perhaps the only point that has not been intellectually clarified. There are many other confusing points – due not to a lack of intellectual clarification, but to a lack of publicity for the intellectually solid positions already expressed. For this reason, I think it is important to tackle this present point.

Magister rightly points out that Benedict XVI himself had doubts concerning this very point: when a baptized person who gets married with the sacramental rites but without faith and afterward, having abandoned his first spouse and joined a second one, converts. These doubts were expressed by Cardinal Ratzinger, before he became pope, in a 1998 article. They were grounded in the opinions of some theologians according to whom canon law would have to do with ecclesiastical norms and not with divine norms.

However, the opinion of the theologians mentioned by Cardinal Ratzinger are not accurate. Canon law has to do with divine law plus (as any law) natural and positive norms. What divides canon law from morality more accurately is that “law” (or, better said, “right,” objective ius) is what must be recognized and declared by the prudence of the judge. Right encompasses, regarding marriage, the same norms and problems of morality that the consciences of private persons have to consider when they want to make a right decision.

Sometimes, however, the private person has certainty in his or her conscience of a matter of fact that he cannot prove. Thus, there is a division and a difference, but they lie in the prudence of the judge and the prudence of the private person, not in the norms or problems involved.

The canonical dimension of the Church excludes that a person acts according to his certainty against the judgment of the Church judge or official. John Paul II considered this issue in a more general way in Familiaris Consortio 84 and concluded that the Church cannot grant communion to the faithful who find themselves in such situations: there are some “who have entered into a second union for the sake of the children’s upbringing and who are sometimes subjectively certain in conscience that their previous and irreparably destroyed marriage had never been valid” (FC 84). Precisely thinking of these persons, he declared that they may not receive the sacraments due to the requirements of Holy Scripture. It is hard, I know, but then perhaps this is how persons in such situations carry their own crosses and follow Christ.

Benedict XVI himself, once become pope, confirmed this doctrine in two enlightening paragraphs, contained in the post-synodal apostolic exhortation Sacramentum Caritatis, n. 29, which I copy here and which was quoted by Magister in 2011:

29. If the Eucharist expresses the irrevocable nature of God’s love in Christ for his Church, we can then understand why it implies, with regard to the sacrament of Matrimony, that indissolubility to which all true love necessarily aspires. There was good reason for the pastoral attention that the Synod gave to the painful situations experienced by some of the faithful who, having celebrated the sacrament of Matrimony, then divorced and remarried. This represents a complex and troubling pastoral problem, a real scourge for contemporary society, and one which increasingly affects the Catholic community as well. The Church’s pastors, out of love for the truth, are obliged to discern different situations carefully, in order to be able to offer appropriate spiritual guidance to the faithful involved. The Synod of Bishops confirmed the Church’s practice, based on Sacred Scripture (cf. Mk10:2- 12), of not admitting the divorced and remarried to the sacraments, since their state and their condition of life objectively contradict the loving union of Christ and the Church signified and made present in the Eucharist. Yet the divorced and remarried continue to belong to the Church, which accompanies them with special concern and encourages them to live as fully as possible the Christian life through regular participation at Mass, albeit without receiving communion, listening to the word of God, eucharistic adoration, prayer, participation in the life of the community, honest dialogue with a priest or spiritual director, dedication to the life of charity, works of penance, and commitment to the education of their children.

When legitimate doubts exist about the validity of the prior sacramental marriage, the necessary investigation must be carried out to establish if these are well-founded. Consequently there is a need to ensure, in full respect for canon law, the presence of local ecclesiastical tribunals, their pastoral character, and their correct and prompt functioning. Each Diocese should have a sufficient number of persons with the necessary preparation, so that the ecclesiastical tribunals can operate in an expeditious manner. I repeat that “it is a grave obligation to bring the Church’s institutional activity in her tribunals ever closer to the faithful”. At the same time, pastoral care must not be understood as if it were somehow in conflict with the law. Rather, one should begin by assuming that the fundamental point of encounter between the law and pastoral care is love for the truth: truth is never something purely abstract, but “a real part of the human and Christian journey of every member of the faithful”. Finally, where the nullity of the marriage bond is not declared and objective circumstances make it impossible to cease cohabitation, the Church encourages these members of the faithful to commit themselves to living their relationship in fidelity to the demands of God’s law, as friends, as brother and sister; in this way they will be able to return to the table of the Eucharist, taking care to observe the Church’s established and approved practice in this regard. This path, if it is to be possible and fruitful, must be supported by pastors and by adequate ecclesial initiatives, nor can it ever involve the blessing of these relations, lest confusion arise among the faithful concerning the value of marriage.

The issue was solved by Benedict XVI and by John Paul II, as one can see, in accordance with what I have called the canonical nature of the Church.

There is another intervention by Cardinal Müller that requires further examination and a brief comment. Since the prologue to Buttiglione’s book provoked a lively discussion, the cardinal gave many interviews to answer to his critics. In one of them, published on November 9, he stated:

In Latin America, for example, there are many marriages which are celebrated without canonical form, where you have couples who live together but one cannot know if there was effective consent to be married. I was recently in Haiti. There the situation is disastrous: all are called spouses, they live together, but they are formally married neither in the Church nor civilly. When some of them get more mature, they begin to attend the Church, and at that point, one must establish who is the true spouse. Here it is very important that the person be honest and declare sincerely with whom he or she has expressed true consent because it is consent that is of the essence of marriage, not only the canonical form. In any case, for the admission to the sacraments, it is the parish pastor or the bishop who has to clarify the situation in cooperation with the freedom of the faithful.

This paragraph suggests many reflections. One is that Europeans tend to consider with condescension what they call the “Latin American” Church. We Latin Americans do not want that. There are enormous problems in the faith of Europeans, and we do not think our problems are bigger than theirs.

Besides this, before the Council of Trent, marriage was contracted “solo consensu.” But the council changed that precisely because of the abuses this system allowed. Don Quixote has a couple of examples: men contracted marriage just to obtain what they wanted and afterward denied being married, leaving the women in the moral persuasion that they were not allowed to marry again without committing the sin of bigamy but without canonical means to enforce their marriages on the men. Thus, the canonical form was established as essential.

As Francis of Vitoria has taught in his commentary to the Summa Theologiae, when a solemn form is established for a juridical act, the violation the formality entails the nullity of the act in both the internal and the canonical forum:

If [an act could be valid in the internal forum while it is invalid in the canonical forum,] without a doubt the rights of human beings would have been established after a flawed deliberation and such rights would be ill established. It is proved: the allegation of the lack of form would be useless and very dangerous in the canonical forum if such defect had no effect in the internal forum. To say that a right exists in the canonical forum with which right human beings could be condemned [by God] would be absurd, because the laws [in truth] provide rather to the health of the soul than to that of the body[.]

So the Haitians are not married without the canonical form. There could be exceptions, but they have to be in accordance with canon law. A good example of these exceptions is given by cardinal Müller himself, in the same interview recently quoted:

There are particular circumstances – for example, in regimes that persecute the Church – where to marry canonically is impossible. Let’s give as an example North Korea.

That is a good example. Another one could be that of the Japanese Catholics, who for more than two centuries, until the end of the 19th century, formed a community of only laypeople, since the clergy was exterminated in the 17th century. They had only two sacraments: baptism and marriage. Of course, this is an exception in accordance with canon law. But here, too, the assertion of nullity must be in accordance with Christ’s law, even if perhaps a canon court cannot know the case and the sacrament was celebrated without the canonical form.

I think that with these considerations, sufficient light has been shed for the moment on the issue, which still requires some intellectual clarification. Let’s pray that this effort and the effort of many other Catholic authors who strive to be faithful to the solemn Magisterium of the Church reach the “peripheries” with God’s favor.

41 thoughts on “When Marriages Are Legal and Also Illegal: A Response to Cardinal Müller”

  1. I am an abandoned husband, faithful to our vows who is sick and tired of this trash tacit abandonment of abandoned spouses by Rome.


    So stop the damn games and just open communion to everyone.

    You have mocked our valid marriage for pushing 30 years.

    You preach sophistry, not the repentance, forgiveness, restoration and healing, that Jesus Christ preached and died for!!

    For God’s sake, look in the damn mirror and see the reflection of Lucifer! That is whom Rome serves and worships and it CANNOT BE MORE OBVIOUS!


    • Dear Karl,

      I am sorry about your sufferings. But a Christian cannot change Christ’s teachings. Please, read the Gospel (cf. Mk10:2- 12) and then, with the hand on your heart tell me if Christ taught what I said here he taught.

      Now, I tell you (if you write in good faith): Christ knows your heart better than yourself. His teaching contains the secret of your temporal and eternal happiness. “If anyone would come after Me, he must deny himself and take up his cross and follow Me. 25For whoever wants to save his life will lose it, but whoever loses his life for My sake will find it. 26What will it profit a man if he gains the whole world, yet forfeits his soul? Or what can a man give in exchange for his soul?” (Mt 16:24-25). I know several persons who have followed this path of continence and humility.

      Merry Christmas!

      • The Catholic clergy have no idea what truth is any longer.

        If my sufferings are what is necessary to save my soul, my wife’s soul, her long time lover’s soul and our children’s souls, then praise God!

        • “The Catholic clergy have no idea what truth is any longer.”

          Some do.

          I gave you the “Like” for the statement that followed it.

          But never forget, it is sin that sends one to hell, and our sufferings do not compare to the suffering of Christ only who frees us from THAT.

          • Karl,

            You have a lot of fortitude in remaining faithful to your marriage vow, and I admire you for it.

            I’m not a mindreader, but imo maybe this is your share in the abandonment of Christ during His Passion.

            You are a fine Catholic gentleman. Keep the Faith!


          • Also, Romans 8:18: “I consider that our present sufferings are not worth comparing with the glory that will be revealed in us.”

  2. A tortured and largely incomprehensible analysis.

    The Church must assume, as its default position, that any canonical Catholic marriage is valid. Bergoglio was blathering, some time back, about how he believed that most marriages were actually “invalid”. That’s pure poison to the institution of marriage, whichever way you slice it or dice it. The Church is not in the business of mind reading. Only God knows the true intentions of those who stand before a priest and say “I do” but the Church must assume that a marriage is perfectly valid. The burden of proof to the contrary must rest with those who petition for an annulment and this is an issue of great gravity which is why Bergoglio’s “quickie” annulments are Catholic divorce by any other name.

    In 1968, when the pre-Vatican II teaching on marriage was still held by most, 338 annulments were granted in
    the U.S. This reflects the care and rigor with which the annulment process was treated and the Church’s belief that a marriage was valid unless proven otherwise. From 1984 to 1994, the Church in the U.S. granted just under 59,000 annually. That sort of disparity is a scandal.

    Personal “certainty” that one’s first marriage was “invalid” can not be authentic grounds for an annulment and for this reason, as the author states, this cannot be sufficient grounds for receiving Communion when a judge has not upheld a petition for annulment.

    • Dear Kiwiinamerica,

      The analysis is complicated, but I think that necessary. First I say the same thing that you say, but responding to the doubts Cardinal Ratzinger had once. Then I answer to two further points raised by Card. Mueller, which again, I find necessary to do. But we are in agreement, I think, concerning the substance of the matter.

    • In England, “Faith” magazine was making all these points about the disastrous state of “Catholic” marriages back in the 1980s. A glorious phrase used at marriage tribunals was “lack of due discretion” as a basis for declaring a marriage null. As the scathing “Faith” editor noted, this was a recipe for declaring 90% of marriages null – thus anticipating Pope Francis’ bizarre declaration by over 30 years.

      The editor insisted that “lack of due discretion” should be an almost pathological diagnosis. If it simply meant “they were young and very gormless [great Yorkshire word!!]”, the vast majority could get an annulment on demand.

      Another writer has defended Pope Francis’ declaration that most marriages are “invalid” by pointing to the near-universal use of contraception among western Catholics and suggesting that a person intending from the start to use contraception cannot contract a valid Catholic marriage.

      When I lived in Michigan (998-2000), my parish priest asserted that, where he had helped an unhappy couple complete their application forms for an annulment, the application had never been refused. So effectively, Detroit Archdiocese was providing divorce on demand.

      The road back from this level of permissiveness can only be a long and hard one, with the inevitable loss of many nominal Catholics.

  3. I cannot follow this essay. There is no way there exists a situation where some Catholic not validly married with Catholic form can engage in the marital embrace licitly. If there is some doubt than you abstain.

    • Dear Tem: the point is that nobody can exhibit a second marriage without canonically annulling the first one and have Communion without the committment to live in continence. Some have doubts in those cases in which a person was certain of the nullity of his or her first marriage but could not prove the cause of nullity. Among those persons is counted Card. Mueller. This forced me to do a brief analysis from the view point of the philosophy of Law and the nature of the Church.

      • I think we agree. My point is that so called tough cases are only viewed as tough because people demand sex as if it is like air or food.

        The subjective conscience does not justify man or obviate the moral law.

        • One’s subjective conscience is insufficient as cause to nullify abdm objective act a sacrament. Especially these days, particularly with “cafeteria Catholics,” the consciences of most people are poorly formed – abd why not? They don’t really know the faith.

  4. “It is hard, I know, but then perhaps this is how persons in such situations carry their own crosses and follow Christ.”. I think that is the nub of the whole attitude of today’s neocons. “It’s too hard”.”they can’t possibly…” Whatever happened to “God sends His crosses to those He loves ?” I have to declare an interest here in that I was in receipt of a Decree of Nullity after many years alone. A Decree I would not have pursued if I had the slightest reason to suppose the Tribunal would rubber stamp something not right. Had I not been granted that decree, I would never have considered marrying properly, I would have remained alone. (Remember, after such a decree the participants were never married at all.) It was difficult being alone under my circumstances. It would have been impossible to live with my concience with someone else. I am not a brave person. But the thought of incurring the wrath of God is more scary than anything else. Please Pope Francis, help those who are in these situations to do God’s Will. Don’t grease the slope down to hell

    • I would not trust an American decree of nullity without a concurring opinion from a marital defender who actually knows how corrupted Catholic Canonists are, by and large, with their get out of marriage free annulments, especially based upon lack of due discretion and perhaps simulation. The lack of form nullities are often a sad joke.

  5. The fact that anybody can get married, prepared or not, and anybody can get divorced thereafter if ‘things don’t work out’ is the problem.

    Make it impossible for Catholics to marry outside the Church, and never to non-Catolics or pagans under pain of sin. Make mariage prep mandatory. Make divorce impossible under pain of sin (not separation which may be necessary in rare cases).

    We don’t do this because we ‘know’ millions would leave the Church over these restrictions. Well, that’s it, I guess.

  6. If the truly tough questions were really what this is about, then they would be cited in the clear and dealt with one by one. But just like the “life of the mother” in the issue of abortion, these “tough cases” are merely used as excuses to destroy morality and in this instance the specific Sacrament of marriage and effectively in one more way further Protestantize the Church.

    Does anyone believe Bergoglio does not know what he is doing?

  7. “where the nullity of the marriage bond is not declared and objective circumstances make it impossible to cease cohabitation”

    Do these circumstances only exists for second, so-called marriage? Or, do they also exist for marriages declared null, and Christ’s Church then instruct the parties to live together as brother sister even though they are declared not married? Seems unnatural that these circumstances would only occur in the second, so-called marriages. Why would unmarried second partners ‘need’ to stay together, but the first partners never seem to have this ‘need’. What could be a possible circumstance that only occurs in second so-called marriages and not in first marriages? Kids? Sick/elderly partner needing care? hmmm

    • Annulment is never mentioned or discussed unless a marriage is irrevocably broken and there has been a divorce. This is why the situations you hypothesize about a “first marriage” never arise.

      • Marriages are never irrevocably broken. God always supplies enough Grace to sustain what He has joined. What may appear as a broken marriage is displacing the choice of one or both spouses to not act married. The marriage exists even if one or both now want to act unmarried.

  8. A thorough examination Carlos Casanova of a difficult issue centered on the crux o the entire issue. The exchange of vows. Casanova shows that Cardinal Mueller’s opinion regarding a penitent’s conviction their first marriage was invalid due to lack of faith is in line with Pope Francis. A serious departure from John Paul II and Benedict XVI. It must be rejected. God would not have made marriage indissoluble if the exchange of vows were not a simple act. Discernment cannot validate the conscience of the penitent, which can be falsely formed on the matter. Most persons I interviewed who were D&R will say their first marriage was invalid but cannot show evidence. Both John Paul and Benedict agreed on that when they became pontiffs. Cardinal Mueller is trending on this issue and on the Eucharist stating Aquinas’ metaphysical definition involving transubstantiation is simply Medieval thought. I no longer trust. Casanova does discuss some important matters that as he says require further study. His association of canon law with divine law is superb.

    • People invest themselves in their defenses and in those whom they embrace in subsequent relationships. These, among other factors, absolutely, even perhaps unconsciously, but consciously as well, create a milieu in which history is mentally rewritten, yielding new, but non-accurate “memories”.

      It is these falsehoods upon which divorce, adulteries, civil remarriages and annulments are based, in many circumstances.

      I am certain, there is little interest in the disciplined pursuit of truth/justice related to the annulment process.

      • I’ve had similar thoughts about the process. There is strong indication of that regarding certain dioceses that simply rubber stamp requests and laity know that. John Paul II admonished the US church for that practice and God will judge all concerned. Nonetheless some dioceses depending on the bishop have made the process more exacting in accord with viable standards. Pope Francis has exacerbated the dilemma by the new reduced standards of examination.

        • That God will judge all concerned, and this is not a dig at you, is unacceptable to this abandoned spouse.

          I understand what you are saying. But it is a void to me.

          • Of course Karl I’m not familiar with your tragedy which abandonment is. And not with all the nuances you referenced to in your initial reply and how they affected you. What you described are mitigating conditions and some conditions are real and recognized by God. You have my personal intent and prayers for your good.

          • Thank you. It is appreciated and needed. I want the Church to address and defend our valid marriage, to its full extent. That is what I have always asked of it. It never has. It has done, just the opposite and continues to do that.

            I do not think that men like Jorge Bergoglio have the slightest clue what is REALLY going on in the trenches. If he did, and did not see how wrong his understanding of things is, then I would fail to see the efficacy in Catholicism any longer. It is THAT cut and dried.

  9. Geeeeee Father, I am way more advanced in my faith now than when I married HER, divorced HER, and married Jill from the choir. Now I have finally gotten it!!!! My conscience just absolutely tells me that I didn’t know my faith enough to have actually married HER. So I really, really, really believe that I can receive communion now.

        • I have no problem offending people, if it’s effect is oriented toward what is good.

          I read what you posted. I might, on occasion post some things like that myself. However, in the consideration of someone coming upon such a comment for the first time, it is quite possible that it might be both offensive and not clearly understood as satire or parody.

          That is what I was trying to say. I am conservative/traditional/old. I deeply dislike censorship and embrace freedom, to be right or wrong. But, clarity is needed, in all honesty.


          I was not just trying to be a smart ass!

          I just did not know where you were coming from.

          If you were serious, your comment was wrong. Period!

          If you were making fun of the abuse that is present throughout the Catholic Church with respect to marriage, I offer you a toast, in agreement.


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