I am writing this article for my friends and brethren so that they may understand my view on the ethics of marriage. Although I am not a theologian, as a Christian it is my duty to seek God’s will by reading the Word of God – for How blessed is anyone who (…) delights in the law of Yahweh and murmurs his law day and night (Ps 1, 1-2). Unlike 99% of the theologians who have dealt with the ethics of marriage over the centuries, I am not a celibate. Therefore I am writing not as a theoretician of marriage, but as a man who practises it, and I am writing about issues that are part of my personal life – perhaps even its most important part – and not mere legal-theological speculation that concerns many other people but not myself.
Already about 25% of new marriages in Poland end in civil divorce, and in western countries this figure may even exceed 50%. Only the Catholic Church, as well as some other Christian denominations, are trying to counteract the pro-divorce mentality which is spreading more and more in western culture. However, the Church itself is not consistent in its opposition to divorce, permitting a so-called “declaration of nullity” of a marriage, which in practice takes the place of a divorce and may be issued by an episcopal court for quite petty reasons, even for marriages that lasted many years and produced children. Each year, the episcopal courts in Poland receive about 5,000 applications to nullify a marriage. Over 80% of them result in a declaration of nullity . Pope Francis himself said in an interview  in August 2013 that under canon law, half of all sacramental marriages may be void:
We are on the way for a somewhat profound matrimonial ministry. And this is everyone’s problem, because there are so many, no? For instance, I’ll mention only one: Cardinal Quarracino, my predecessor, said that for him half of all marriages are null. Why did he say this? Because they get married without maturity, they marry without remembering that it’s for the whole of life, or they marry because socially they must marry. (…) The problem of the matrimonial ministry is complex. [my emphasis, MW]
It is difficult to remain indifferent to such alarming figures, for they apply to the most important matters: marriage and family, which occupy the major part of the lives of each one of us. These figures encourage questions not so much about the void marriages as about the law under which these marriages were concluded. For if as many as 50-80% of spouses are unable to implement the law and in the light of that law live in extra-marital relationships, in potential adultery, and are not even aware of this, then this fact says more about the quality of the law than about these persons themselves.
I myself am in a sacramental marriage concluded by the Catholic Church 12 years ago, but for 7 years I have been in separation, which occurred against my will and through no fault of my own. Pursuing the teachings of the Church, I have spent the entire period of separation in honest, though involuntary, celibacy. When I asked God to help me and heal my family situation, He encouraged me to take a closer look at the biblical – i.e., God’s – perception of marriage and to compare it with the Catholic view. To my great surprise, I discovered that these are two completely different perceptions.
The springboard for the following analysis is the conviction that the Word of God conveyed in the Scriptures is true and living: it is the source of the moral truth of the life of everyone, in every era (In the beginning was the Word; John 1,1), and just like 2000 years ago God still wishes to talk to Christians and to the Church via the Scriptures (Sky and earth will pass away, but my words will never pass away; Luke 21,33).
If not stated otherwise, all biblical citations come from New Jerusalem Bible. Citations from King James Version denoted by “KJV”. Code of Canon Law referred to as “CIC”.
Marriage, that is …
We generally take “marriage” to mean a union between a man and a woman concluded by means of a wedding: a civil wedding, church wedding or – in some cultures – a common-law ceremony. Such a wedding must assume a suitable – e.g., liturgical – form, usually involving the taking of vows, otherwise it is void. It must also be accompanied by the appropriate procedures, such as the presence of witnesses or an entry in the parish register or civil register. The couple are expected to fulfil additional conditions, such as a full awareness of the duties they are undertaking, internal consent to the marriage, the disclosure by one spouse to the other of any facts that could affect their future union, etc. Unless these conditions are fulfilled, a marriage, even though concluded, becomes void and may be annulled or dissolved by the relevant court.
Thus, marriage in the common meaning of the word is an institution whose central element is the act of wedding which makes the new conjugal relationship a legal entity. This institution is governed by its own legal norms, is regulated by numerous obligations and prohibitions, and is dependent on the legislator, who has the power to decide which union is a marriage and which is not. The Church adds to this that the conclusion of a (sacramental) marriage gives life to a conjugal bond, which is a legal obligation by the spouses towards each other, an obligation for life.
Is that the way God also understands the concept of “marriage”? Does He also regard marriage as a legal entity, created by a wedding conducted in a specified form, with the fulfilment of all legal requirements?
The answer to that question is surprisingly simple. Let us dip into the Book of Genesis that tells the story of the creation of marriage, and check what the first marriage, that of our forefathers, Adam and Eve, was. Was their marriage an act of law? Did they swear any vows? Were they recorded in any register? Did any witnesses sign the document? Was their wedding a civil one, a church one, or a common-law ceremony?
Well, Adam and Eve had no wedding, neither church, nor civil, nor any other. They did not swear any vows, they were not recorded in a register of marriages, they had no witnesses and signed no documents. Yet, God says in the Bible that they were “husband” and “wife” (Gen 2,25; 3,16), i.e., they formed a marriage! Therefore, in the eyes of God it is not the wedding ceremony – or any other legally regulated way of creating a union – that determines whether or not a marriage has been formed.
Marriage as a Relationship
A conjugal relationship was created by God in the very beginning, when He created the world and Man, therefore it is an integral part of God’s plan towards Man: It is not right that the man should be alone (Gen 2,18). Describing this event, the Book of Genesis presents the characteristics of a marriage:
This is why a man leaves his father and mother and becomes attached to his wife, and they become one flesh. (Gen 2, 24)
This is the most literal and unequivocal description of a marriage to be found in the Scriptures, and occurs in a very particular place, in the very story of Man’s creation. Also, when talking of marriages, Jesus refers to this, and no other fragment of the Old Testament. Therefore, through Jesus, this verse should be considered as the biblical definition of a marriage.
According to this definition:
Marriage is a relationship between a man and a woman in which they become “one flesh”. Importantly, the term “one flesh” as used here means not just a sexual intercourse, but a community of life, the creation of a common family organism, because a couple cannot have a sexual intercourse perpetually, while the state of being “attached to his wife” is meant here to be perpetual. Such an understanding of the term “flesh” (or “body” in some other translations, e.g., The New American Bible and all Polish translations) is further justified by St. Paul who says in a similar sense of the Church community that it is the “Christ’s body” (1 Cor 12, 27). Also, the words of Jesus whereby a rejection of one’s wife is referred to as a division of the “flesh” (Mat 19,6) show that within the meaning of the Book of Genesis, “flesh” means not only a (transient) sexual intercourse but a (perpetual) family communion in which a man and a woman live, with sex life being its central – but not the sole – component.
The head of the conjugal body is (or should be) the husband, for it is he who takes the initiative to join with a woman, and for this purpose leaves his father and mother and abandons their care so that he may care for his wife (cf. 1 Cor 11,3).
In the intent of the couple, their union should be permanent, for that is the purpose of leaving one’s father and mother. Thus, a marriage is definitely not created by sex with a prostitute or a brief romance with a lover, because these are intentionally non-permanent unions and no one would leave one’s father and mother for them.
The term “one flesh” (“one body”) suggests the blessing which, in God’s plan, accompanies married life. Just as in a biological body individual parts mutually supplement and support each other, such that the body is something much more than a mere sum of its parts and an individual part dies when removed from its body, so in married life the couple support each other and live a fuller life thanks to their marriage, and once they have been “removed” from marriage, e.g., through divorce, they die in a certain sense. Therefore the term “one flesh” suggests a positive aspect of marriage, being the source and condition of a couple’s life (cf. 1 Cor 12, 12-27).
It is different with the term “matrimonial bond”, applied in Catholic marriage ethics as an alternative characterization of the nature of marriage, especially in the context of indissolubility (e.g., Code of Canon Law [CIC] 1134). This expression suggests not a blessed, divine character of marriage, but a curse apparently brought upon marriage in the form of a bondage (“bond”), confinement, enslavement… allegedly the result of living together. Today’s popular culture is particularly prone to accepting this very view of marriage: as a curse that constrains personal freedom, not a blessing that brings life and happiness.
Relationship vs. Institution
To fully understand the nature of marriage as disclosed in the Bible, let us consider a few more facts.
- The Book of Genesis does not use the term “marriage” in its description of the marriage relationship, though it does say that Eve was Adam’s “wife” (Gen 2,25) and he her “husband” (Gen 3,16). It is similar in the remaining books of the Bible: the Scriptures mention “husbands” and “wives” many times, but “marriage” hardly appears at all. For instance, in Polish translation (Biblia Tysiąclecia V, 1999), the term “żona” (“wife”) appears almost 600 times, but “małżeństwo” (“marriage”) is mentioned 10 times altogether, with 6 of these occurrences in the New Testament. This huge disproportion suggests that it is not “marriage” as an abstract legal concept that counts, but the material fact of “being a husband” or “being a wife” – in “one flesh” – for the other person.
- Occasionally the Bible uses the terms “betrothal”, “to wed” or “wedding”, but never describes the actual ceremony or provides any details such as the vows made or the formal condition which the newlyweds must fulfil.
- The Mosaic Law – handed down by God and regulating the live of the tribe of Israel from its beginning and throughout the entire period of the Old Testament – contains numerous detailed rules referring to marriage, but just like the Book of Genesis it introduces no legal-institutional definition of marriage.
All the above facts: the rare use of the term “marriage” despite numerous references to the conjugal relationship; the low importance attached to weddings and to their legal regulation; the absence of a legal definition of marriage in the Mosaic Law, and – most of all – the description of marriage in Genesis as a relationship of “one flesh”, strengthened by Jesus referring by himself to this description and to no other fragment of the Scriptures – indicate that the material fact of “being one flesh”, and thus “being man and wife”, is important to God, not the formal fact of “being married”, resulting from the legal act of “getting married”. This is a good news for us: God is not a bureaucrat who requests legal certificates of any kind to judge His people. Instead, He “triest the reins and the heart” – i.e., sees the actual intentions and relationship between the couple – and based on this “judgest righteously” (KJV, Jer 11, 20).
Thus, in the Bible, the man and his wife are first as “one flesh” for each other, and only then can one say that they are a married couple. Marriage is a relationship between two people independent of the fulfilment of legal requirements, and a wedding plays a purely social role, as an expression of the acceptance of the marriage by the society in which the couple lives, but not a constitutive role.
This is quite the opposite of the view prevalent in our society, where first, one has to have a wedding in order to enter into the marriage, and only after that do the man and wife exist as spouses for each other. Catholic marriage doctrine and secular culture and legislation both afford priority to “marriage” as an independent institution, a legal state per se, separate from the factual relationship between a couple and dependent almost solely on the fulfilment of formal requirements (wedding, vows), the following of the right procedure or adherence to the appropriate liturgical form, no matter if the couple actually live together.
This difference is of fundamental importance for the ethics and theology of marriage. A relationship may exist without an institution, just like an institution may exist without a relationship. Saying in the language of the Bible, which lays emphasis on the relationship (“husband” and “wife”), and not on the institution (“marriage”):
in canon and civil law, a husband and wife are persons who have undergone a formal wedding ceremony;
in the Bible, a husband and wife are persons who live together as “one flesh” …
… two entirely different definitions, two entirely different marriage ethics.
Comparing these definitions, it is easy to notice that the first of them, dependent on the legal definition of “wedding” and not on the material fact of being “one flesh”, gives legislators the power to arbitrarily decide who may get married and under what conditions, in other words who may form a “marriage”. This paves the way to redefining God’s law and deprives the Church of the ability to try and establish a true – godly – vision of marriage, that would become universally accepted, both inside and outside the Church.
The Institutionalization of Marriage
Defining marriage as an institution and making it controlled by numerous formal regulations is not natural in the Catholic Church. It was not like this from the beginning. (Mat 19,8)
Throughout most of its history, until the Council of Trent, the Church recognized common-law marriages concluded either with a common-law wedding or by the mere fact of living together. The Church did not make the recognition of a marriage dependent on any formal requirements, even if a certain official form was recommended. It was the Council of Trent, by means of the Tametsi decree (1563), that introduced the requirement of having a wedding in the presence of a clerical authority, otherwise the marriage would be void in the eyes of the Church. But not even this decree was implemented fully, for in order to have the force of law it had to be announced in a given parish, which did not always happen in, for example, Poland. Therefore, in many parishes until the beginning of the 20th century, it was possible to have a wedding in any form – official or unofficial, liturgical or non-liturgical – and the Church recognized it. Marriage in the entire Church did not become completely institutionalized until 1907 with the introduction of the Ne Temere decree, which extended the legal scope of the Tametsi decree (e.g., the requirement of active, not passive, participation by a priest) and which immediately became applicable throughout the Church .
So it is only for the last hundred years that the Church has asserted that a marriage between Catholics is valid only when performed according to an official canonical form, with an adherence to numerous requirements of canon law. How did this change relate to God’s law and His will? For it is God – not canonists – who decides what is sinful and what is not. Canon law is expected to fully reflect God’s law. Thus, if the canon law has changed in 1907 and suddenly some acts – namely the acts of living together without church marriage – became sinful, although they had not been so for nineteen centuries before then – does it mean that God changed His law in 1907? Or that the Church was blind to adultery committed by millions of couples living in informal marriages for nineteen centuries until Ne Temere? Both of these explanations are ridiculous.
To understand the historical evolution of the doctrine of marriage, one should note that the Church as an institution rose from the ruins of the Roman empire and that for many centuries, the development of theology and canon law was greatly influenced by Roman legal philosophy. Though the empire fell, the spirit of Roman legalism did not die, but moved to the institution of the Church which was being born at this time. This can be seen particularly clearly in the doctrine of marriage.
During the first centuries of Christianity, the Church did not formulate its own law on marriages, but accepted the authority of Roman law on this subject. From the sixth century onwards it gradually introduced prohibitions on marriage in certain situations, e.g. between relatives. As this legislation expanded over the following centuries and it became necessary to settle many disputes before church tribunals, the Church in the 10th and 11th centuries began to ask what the validity of marriage depends on. This led directly to questions about the nature of marriage.
Seeking answers to this question, in the 11th century the Church rediscovered a classic definition of marriage by the Roman lawyer Ulpianus , stating that consent, not physical intercourse, constitutes marriage (Nuptias non concubitus, sed consensus facit), in other words a marriage is a legal entity, a type of contract between two persons who have jointly decided to commence a life together. In the 12th century there was a dispute within the Church on whether to adopt this view or a competing idea whereby the existence of a marriage is determined by sexual relations, not a contract. In the 13th century this dispute was resolved in favour of the theory of consent, partly as a result of the general opinion in the Middle Ages whereby sexual relationships are by their nature sinful – a view which goes against the Book of Genesis and was rejected by the Church over successive centuries, but without a repeated reflection on the nature of marriage.
The Rev. Piotr-Mieczysław Gajda talks about the Roman and legal roots of Catholic marriage doctrine in his book “Prawo małżeńskie Kościoła Katolickiego” (“The Matrimonial Law of the Catholic Church”) :
Modestinus, a distinguished Roman lawyer of the third century A.D., described marriage as a union between a man and a woman for life and causing co-participation in divine and human laws. According to the Emperor Justinian (sixth century), marriage is a bond between a man and a woman that represents an indissoluble communion of life. From these definitions it emerges that the Romans regarded marriage as a permanent bond between one man and one woman, obligating them to live in full communion and resulting in specific legal consequences. The cause of marriage was matrimonial consent. Such a definition of marriage became widespread in medieval teachings on canon law. [my emphasis, MW]
In this way, secular legal theory – originating not from Jesus but from “distinguished Roman lawyers” – passed to the Church. In the following centuries it enforced a gradual and increasingly profound institutionalization of marriage, because if establishing a marriage is reduced to a legal act (expression of consent), fully dependent on man’s – not God’s – will, then there is a natural need to lay down the rules on who, when, how and under what conditions may perform this act; when it is valid and when it is not, etc. It was just a question of time before numerous detailed regulations, as well as courts and tribunals to resolve disputes, emerged.
And so, for example, when the Bible simply talks of “husband” and “wife” or sporadically mentions “marriage” (without adjectives), the Church distinguishes between many types of “marriages”, such as: “valid”, “invalid”, “validated”, “true”, “putative”, “ratified”, “merely ratified”, “non-consummated”, “consummated”, “public”, “secret”, “sacramental”, “civil”, “religious”, “natural”, “mixed”, etc.  As one can see, what is simple for God became somewhat more complicated in Church doctrine.
It is no better with the question of determining whether a marriage exists. In the Bible, this is determined by the simple fact of being “one flesh”, described in a short fragment of Genesis – and that is all God needs. But in the Code of Canon Law, the doctrine of marriage extends over 10 chapters and 111 canons listing numerous “conditions”, “obstacles”, “impediments”, “faults”, “causes”, “actions”, “effects”, “rights”, “obligations”, “duties”, “documents”, “permits” etc., which determine whether a marriage is valid or not in the eyes of the Church.
The theory of the “consent of the parties” remains the basis of Catholic doctrine to this day and is the cornerstone of the entire subject of matrimonial law  (Fr. Marcin Królik), for as the Code of Canon Law says in its first canons on marriage: The consent of the parties (…) makes marriage (CIC 1057 §1) – which is a literal transposal of Ulpianus’ theory. Moreover, this consent must be legitimately manifested (CIC 1057 §1). In turn, canon 1055 §2 directly refers to a matrimonial contract … We will not find such words anywhere in the Bible. Thus, the Catholic concept of marriage does not derive from the Scriptures, but is rooted in the secular theory of law derived from the pagan culture of the Roman empire.
St. Paul, himself a citizen of Rome and a savant of the law, wrote thus about placing one’s trust in the Law:
You stupid people in Galatia! (…) How was it that you received the Spirit – was it by the practice of the Law, or by believing in the message you heard? Having begun in the Spirit, can you be so stupid as to end in the flesh? (…) Would you say, then, that He who so lavishly sends the Spirit to you, and causes the miracles among you, is doing this through your practice of the Law or because you believed the message you heard? (…) So it is people of faith who receive the same blessing as Abraham (…). On the other hand, all those who depend on the works of the Law are under a curse. (Gal 3, 1-10)
God’s Will. Man’s Will
The theory of “consent of the parties” is not only un-biblical, but downright contrary to the words of the Scriptures. In the Gospels, Jesus says very clearly and unequivocally that it is God, not man, who joins marriages: They are no longer two, therefore, but one flesh. So then, what God has united, human beings must not divide (Mat 19, 6). Therefore it is God’s will, not man’s will, that plays the key role in the creation of each marriage. It is not “consent of the parties”, nor a “contract” or vow by the newlyweds, nor the priest’s blessing, nor the liturgical form, nor an entry in the parish register that creates a marriage – but the will of God, the will of God causing a “union” of the spouses in “one flesh”, and not in an abstract legal entity like a “conjugal bond” (a term which, by the way, occurs nowhere in the Scriptures, and especially not in the sayings of Jesus).
In what concrete way can God’s will be fulfilled? For example, through falling in love – something independent of man’s will, therefore having the utmost dependence on the will of God, for no one can independently decide that he will now fall in love with this or that person. Or through the influence of other people, like relatives advising someone to marry. Or through an unexpected event, such as becoming pregnant… God’s will may be fulfilled through all the innumerable factors that influence a decision to live together and which the potential spouses have no full control over.
Excluding God’s will from the process of creating a marriage results in the entire responsibility for this process being shifted to the spouses themselves. They now have to be 100% certain that they want to marry – for noble motives, without contamination from any outside pressure or influence; they must be 100% aware of the duties that will rest upon them as a married couple; they must agree 100% to assume these duties; they must also be 100% psychologically ready to do so… If any of the newlyweds breaches any of these conditions – and ecclesiastical court figures on annulment indicate that few people can perfectly fulfil them – the marriage becomes null under canon law, and in the light of Catholic marriage ethics these persons have no right to live together because that would be adultery; consequently, they should separate.
But at the same time, in the light of the Bible, these same persons “are no longer two, but one flesh” (Mat 19, 6), therefore in the eyes of God they are a full marriage which “human beings must not divide” – in other words their separation, which the Code of Canon Law incites, would be the sin of adultery! (Mat 19, 9; “anyone who divorces his wife (…) is guilty of adultery”; or in King James Version [KJV]: “Whosoever shall put away his wife (…)”, similarly in Polish translations). Here one can see the obvious inconsistency between Catholic marriage doctrine on the one hand and the Gospels and teachings of Jesus on the other, an inconsistency which leads to the break-up of marriages and tragedy for many families.
Adultery is a sin. Not without reason does it appear between killing and stealing in the Ten Commandments, because in its nature and consequences it is similar to both these sins: similar to theft because it deprives another person of his spouse; and similar to killing because it destroys the conjugal “one flesh”. Therefore the Church is right to warn against it, except that sometimes it wrongly defines the very concept of adultery and consequently, in some cases, encourages adultery instead of protecting against it. Let us reiterate: Jesus never said of marriage as a legal institution, but instead referred to marriage as a relation of being “one flesh”. Replacing this relational definition with an institutional one changes the meaning of “adultery” and inverts the teaching of Jesus.
Divorce is a matter that causes the biggest social controversies. The Church – inspired by Jesus’ prohibition of dividing “one flesh” or rejecting a wife/man – attaches great value to the indissolubility of a marriage, teaching not only that man is not allowed to break up a marriage, but does not even have the physical possibility to do so. Consequently, canon law does not foresee such a possibility and in this way introduces legal indissolubility: every (sacramental) marriage is said to last for life, regardless of the will of the spouses and their actual relationship. Such a restrictive interpretation of the words of Jesus is unjustified for several reasons.
Firstly, from the very logic of Jesus’ words it emerges that a marriage can indeed be broken up. Although divorce is a sin, it is possible to commit it, and there are no physical obstacles to prevent it. For if Jesus says: “human beings must not divide” (Mat 19,6; KJV: “let not man put asunder”), it means that a man is able to divide if he wants to, only this is a sin. To divide means to create a situation when “one flesh” – i.e., the marriage – ceases to exist, because it is no longer “one”. Jesus would not have talked about something that cannot be done at all.
Compare, for instance, the Ten Commandments. When they say, “You shall not kill”, does it mean that killing is impossible to do, or that killing is a sin? When they say, “You shall not steal”, does it mean that stealing is impossible to do, or that stealing is a sin? Obviously, they say about sinfulness not impossibility, and these are two different things. So why are Jesus’ words “must not divide” interpreted in Catholic doctrine as physical impossibility, not just sinfulness, of a divorce?
Replacing sinfulness with impossibility has serious ethical consequences. If we claim that committing a sin is impossible, how can conversion be possible? If there is no sin, there is no repentance, no conversion, no room for God’s mercy and forgiveness! That is exactly the situation of many marriages today, especially remarried couples. They are caught between Scylla and Charybdis of legal indissolubility which – based on the untrue assumption that marriage is a legal entity that cannot be physically dissolved – calls for unconditional abandonment of the new spouse, even if this would bring even more harm to people around (the new family). The common sense, the conscience and the natural instinct of faith (sensus fidei fidelis ) warn that destroying yet another family – in addition to the previous one – must be a bad thing to do and surely not a solution envisaged and recommended by God. However, staying with the new family is said by the Church to bring eternal damnation, with no chance for forgiveness. A legal trap where no right choice seems to exist under the current doctrine.
What is more, Jesus himself says that after a divorce it is possible to enter into a new conjugal relationship, that is, to remarry. In certain situations this is a sin, yet the new relationship is still a true marriage in biblical terms. For if Jesus says: anyone who marries a divorced woman … (Mat 5,32; likewise Mat 19,9), this means that a woman after a divorce can be married and become a wife in a new relationship. Or in another place: Whoever divorces his wife and marries another (…) And if a woman divorces her husband and marries another (Mark 10,11-12) – which clearly shows that one can marry again and be a husband or wife in a new relationship, i.e., form a marriage, regardless of who brought about the divorce. Thus, the question of whether a marriage exists is separate from the question of whether a sin exists in certain situations. Compare, for instance, the teaching on human dignity. The Church recognizes that every human life has dignity and deserves protection no matter in what way it was conceived. So, for example, a child conceived in a rape must not be aborted, despite of a grave sin committed during conception. Similarly, the Church should recognize that a new marriage and the new family, even if conceived in adultery after a divorce, is a true family – “one flesh” – that has its dignity and deserves Church’s protection, too.
Secondly, as discussed in the previous chapter, the Church does not de facto recognize God’s executive role in the formation of a marriage – at least in legal regulations and jurisdiction, which are most important. Although in rhetoric (sermons, catecheses etc.) the Church says much about God’s role, yet in practice, in the case of specific marriages and specific decisions affecting the lives of persons (court judgments on nullity, non-sacramental marriages etc.), the Church no longer sees this role, claiming that it is the “consent of the parties” (CIC 1057 §1) not God that makes marriage. Thus, from the above-quoted statement by Jesus (Mat 19, 6), the Church accepts only the conclusion (“human beings must not divide”) but rejects the prerequisite (“God has united”), from which this conclusion emanates. This is illogical. If we reject the prerequisite, why do we accept the conclusion? Apart from the role of God, there is no other – neither theological nor legal – basis on which to prohibit divorces. Only the fact that “God has united” is the reason why a marriage must not be broken up.
By introducing such an inconsistency of logic, the Church places itself in a legal-theological straddle position, with one leg on human tradition (“consent of the parties”), and the other leg on biblical tradition (the prohibition of divorce). In this way, the Church creates room to question its marriage ethics and paves the way for attacks from public opinion, which rightly perceives that in the conclusion of church marriages, the greatest role is played not by God but by people (newlyweds’ consent) and by the Church as an institution, which reserves the right to decide which relationship is a marriage and which is not, and imposes various obligations on the newlyweds, like pre-marital religious instruction, banns, certificates of confirmation, entry in the parish register, liturgical form of wedding etc. Thus, public opinion starts questioning: if it is not God who creates a marriage but people and the Church with all its procedures, then why should Church not relax the ban on divorce? If it has the power to arbitrarily establish and alter the rules for getting married, why can it not just as arbitrarily establish the rules of divorce? This is illogical.
As a result of this doctrinal inconsistency, the Church is regarded just as the Pharisees were in the days of Jesus. The Pharisees who removed God’s law (just as the Church has removed from marriage doctrine the will of God and God’s principle of “one flesh”), but induced an adherence to human traditions (111 canons of matrimonial law reaching back to Roman legacy); and who imposed burdens on others (lack of recognition for non-sacramental marriages and remarried couples, biblically unjustified), while they themselves did not bear these burdens – for the Church as an institution lives behind the walls of celibacy, beyond the reach of matrimonial law, therefore it does not experience itself the problems that beset remaining 99% of society, the problems involving marriage, family and sexual ethics – the most sensitive and painful issues for most of us.
A lawyer then spoke up. ‘Master,’ he said, ‘when you speak like this you insult us too.’ But He said, ‘Alas for you lawyers as well, because you load on people burdens that are unendurable, burdens that you yourselves do not touch with your fingertips. (Luke 11, 45-46)
Declarations of Nullity
Bowing to social pressure and attempting to square the circle of excluding the will of God in marriage doctrine while at the same time maintaining the ban on divorces and condemnation of remarried couples regardless of their family situation, the Church has pursued the line of the Law and extended the institution of “declarations of matrimonial nullity”, admitting divorces through a back door.
The current epidemic of declarations of nullity began in 1983 when the Code of Canon Law was amended by the introduction in canon 1095 of a psychological criterion as a condition for the validity of a marriage: incapable of contracting marriage are … those who are not able to assume the essential obligations of marriage for causes of a psychic nature (CIC 1095 §3). Neither in this canon or anywhere else does the CIC explain what “essential obligations of marriage” are, or what “causes of a psychic nature” are meant . Therefore, an interpretation of this has been left entirely to tribunals or panels of psychologists and psychiatrists who, acting under pressure from the lawyers of spouses or under the influence of their own pro-divorce world outlook, may treat this rule as carte blanche to annul practically every marriage.
Statistics show that a mass annulment of marriages really occurs: the number of declarations of nullity are at a very high level, involving over 80% of the cases considered. For example, in Poland, in 2007, out of 2,171 cases that concluded with a verdict, there were 1,913 cases (88%) in which both by the first instance and second instance court declared nullity of a marriage . The legal basis most frequently applied is CIC 1095 §3.
Nullity or Divorce?
The Church firmly avoids calling declarations of nullity divorces, but their nature – breaking up a family – fully coincides with that of divorces, and if we want to abide by Jesus’ commandment to say “Yes” if you mean yes, “No” if you mean no (Mat 5,37), we must refer to them clearly as divorces.
For, will the harm suffered by children deprived of their father be any less if the mother receives a court judgment saying that the marriage never existed and in a canonical sense this situation is in order? Will this make it any easier for her to look after children? Will a court judgment compensate the children for yearning after their father? That is doubtful.
Or is the harm suffered by a betrayed husband any less if first the court “proves” – often on the basis of false testimony – that he was never fit to be a spouse, and then he receives a verdict saying that in such a case, the marriage never existed, therefore he was never betrayed? Is it in order that he was betrayed not once, but twice: the first time by an unfaithful wife who left him, and the second time by the Church, from which he expected help but instead got a smack on the cheek again? Maybe for the peace of mind of the Church, who “washes its hands” and says: your marriage is void, so what is the problem? – it is all right, in fact. But it is not all right for the millions of Catholic families, and that is surely not what Jesus meant by a ban on divorces.
In the eyes of God, every relationship that has become “one flesh” is a true marriage, whether it is sacramental or non-sacramental, valid in canon law or invalid. If the Church decrees something different on the basis of its own human rules, it breaks Jesus’ commandment of not dividing “one flesh”, helps to break up families, creates a climate of tolerance for divorces, and guarantees impunity for those who cynically betray their spouses because they know that the canon law is on their side. A decree of nullity provides the green light to divide whom God has united, and at the same time issues a certificate of good conduct to those who led to the division. Greater hypocrisy than this is hard to imagine.
In the Scriptures Jesus talks of an almost identical situation, except that it concerns child-parent relationship, when He mercilessly criticizes the sin of religious leaders who are attached to the “tradition of the elders” more than to the word of God and thus tolerate the abandonment of parents:
Then Pharisees and scribes from Jerusalem came to Jesus and said, ‘Why do your disciples break away from the tradition of the elders’ (…) He answered, ‘And why do you break away from the commandment of God for the sake of your tradition? For God said, “Honour your father and your mother” (…) But you say, “If anyone says to his father or mother: Anything I might have used to help you is dedicated to God, he is rid of his duty to father or mother.” In this way you have made God’s word ineffective by means of your tradition. Hypocrites! How rightly Isaiah prophesied about you when he said: This people honours me only with lip-service, while their hearts are far from me. Their reverence of me is worthless; the lessons they teach are nothing but human commandments. (Mat 15, 1-9)
Today the Church talks in a similar way about marriages. For the sake of the tradition of the elders (legacy of Roman law) and human commandments (111 canons of matrimonial law), it permits the abandonment of a spouse, teaching that if only the marriage has been declared invalid by canonists, the spouse is rid of his or her duty to the other spouse.
There is a great disproportion between the extent of the authority the Church has granted itself with regard to marriage and the extent of the help it can provide in the event of marriage problems. On the one hand, the Church gives itself a monopoly over marriages, for it considers only sacramental marriages, remaining under its total jurisdiction, to be valid. On the other hand, when one of the spouses is betrayed by the other, the Church is helpless and the only thing it can offer the spouse seeking help is “euthanasia” for the marriage by declaring it null. Euthanasia that kills the relationship instead of healing it: does not resolve misunderstandings and does not alleviate conflicts between the spouses, but destroys the marriage, divides the “one flesh” and claims that the problem has now disappeared. In fact, not only has the problem not disappeared, but a new one has appeared: the problem of a broken family, rejected children, lonely spouse etc.
It is worth emphasizing that just like the concept of a “matrimonial bond”, the concept of a “null marriage” does not occur at all in the Bible. In the Scriptures, the existence of a marriage is an obvious and incontrovertible fact – the fact of living together in “one flesh” – that is never a subject to “annulment” or “declaration of nullity”.
To understand the practical implications of the marriage regulations in the Code of Canon Law, it is worth taking a look at specific cases where the episcopal courts have declared sacramental marriages null. All the examples below stem from literature on this subject, are described by canonists specializing in marriage law, and are based on actual court judgments.
If a woman becomes pregnant before marriage and this affects her decision to get married, this circumstance may be treated as simulated consent (verbally she agreed to get married, but without the internal conviction; CIC 1101 §2) or as external compulsion (moral compulsion, e.g. through pressure from the family; or grave fear from without; CIC 1103), curbing her free will (lack of an autonomous decision), and thus making her consent to get married – and the marriage itself – invalid under canon law (defect of consent). Considering the fact that pre-marital pregnancy almost always has a fundamental impact on a decision to marry, virtually every marriage concluded in such circumstances may be questioned, in other words in the light of canon law and the practice of the episcopal courts, such a marriage is – already now! – invalid. 
The logical train of thought would be to recommend to pregnant women that they should not marry lest their marriage be deemed invalid under canon law. But this is totally contrary to reason, which says that if the couple did not marry before they had sex and produced a child, they should do so as soon as possible, at least before the birth. This also goes against the well-being of the mother and her child, because she takes the risk that if she delays the wedding, she may not get married at all.
The same argument that is applied to pregnant women may be applied to women with a small child, aged perhaps a few years, and one can also say that if she gets married, the main reason is that the child may have a father (stepfather), rather than a genuine desire to live with a particular man. Therefore, under canon law, a pregnant woman should not get married either now or in future, for successive years, for each marriage concluded during this time may be questioned. In other words, judging by the letter of ecclesiastical law, a woman who becomes pregnant is practically condemned to solitude because even if she gets married, the marriage will most likely be invalid under canon law.
Of course, pregnancy is not the only case where a marriage can be said to have been concluded as a result of “compulsion”, “fear” or “simulated consent”. Every sacramental marriage concluded mainly through, for example, a desire to follow fashion, custom, the expectations of parents, suggestions from a friend or compulsion applied by the future husband / wife etc., is canonically invalid. In sacramental form, such a marriage simply does not exist. These are some of the cases of which the Pope spoke in the statement quoted at the beginning.
The rule most frequently used to question the validity of a marriage  is canon 1095 §3, cited above. This says that a marriage is null if one of the spouses is unable – “for causes of a psychic nature” – to assume the “essential obligations of marriage”. Due to the absence of a detailed definition of the terms used in this rule, it can be interpreted broadly whichever one likes, so it is a cauldron into which practically every marriage can be thrown… (Are you egocentric or pedantic? Work too much? Suffer from anxiety? anorexia or depression? – Do not get married! Your marriage will be canonically invalid and can be broken up by your spouse at any time, with the Church’s approval.)
The nullity of a marriage can be determined, for example, by all kinds of “immaturity”, manifested by such characteristics as:
An absence of deep sentiment between the spouses, a reluctance to fulfil common obligations, emotional ineptitude in establishing a genuine conjugal community … egoism, a search for oneself, a tendency to govern and control… Because… marriage requires an ability to surrender oneself to the other partner, overcome one’s egoism and perceive one’s own shortcomings; to emerge from one’s own world… to collaborate for the common good. The spouses have the right to expect all this of each other.  (Rafał Kornat, ecclesiastical lawyer)
Subjectivism of values, insensitivity to moral values, egoism and egocentrism in relationships with others, emotional changeability, lack of resilience to stress, constant anxiety, a primitive or calculated approach to morals, quarrelsomeness, lack of social responsibility, mistaken hierarchy of needs, infantile egocentrism; youth.  (The Rev. Krzysztof Pokorski, canonist)
Emotional disturbances such as depression, dysthymia, cyclothymia, mania, anxiety, fear etc. (signs of affective immaturity)  … egocentrism, neurosis such as narcissism or exhibitionism, even if not serious  (The Rev. prof. dr hab. Wojciech Góralski, head of the I Chair of Ecclesiastical Marital and Family Law, Stefan Cardinal Wyszyński University)
An inability to control emotions and mental compulsions and desires, or an inability to overcome internal conflicts due to anxiety; a lack of responsibility in assuming and fulfilling important marital obligations. 
And many others…
But psychological ineptitude is more than just immaturity. This concept is much broader and also includes such disturbances as:
An obsessive-compulsive personality. Persons like this… are valuable employees and often achieve considerable success, but are also excessively conscientious, aiming towards and demanding perfection both from themselves and from others; they are suitable for work that requires accuracy, they aim towards cleanliness, are excessively pedantic, meticulous and hard-working… A person like this… is an excellent employee but makes a poor spouse or parent. He will not be able to undertake such duties as caring for the good of the marriage or children. In practice, he will demand from his family members the same as from himself, in other words too much. He himself will not be able to function perfectly, therefore he will bring himself to even greater frustration in his professional and family life, which will affect his family relationships… When emphasis is applied to tasks and productivity, the emotional sphere is left behind, becoming rationalized. Paradoxically, even that which is positive may assume a different nature, therefore one must always remember the so-called golden mean.  (Dr. Aletta Bolesta, ecclesiastical lawyer)
Workaholism… no time for one’s nearest, separation from the problems of everyday life … a concentration on work does not allow mutual marital assistance, mutual development and perfection, and a joint solution of family issues.  (The Rev. Dr. Krzysztof Mierzejewski, judge at the Metropolitan Tribunal of Gdańsk)
Anorexia: implies an inability or reluctance to have children. Such persons are convinced they should always weigh less. Because pregnancy results in an increase in weight, this will not actually make it difficult for her to become pregnant from a medical angle. Rather, at the initial stage of the disease, when she is still physically able to become pregnant she will avoid it.  (Dr. Aletta Bolesta, ecclesiastical lawyer)
Physical infirmity may also result in a psychological ineptitude to marry: spinal curvature, dislocation of a hip, cardiac disorders, hare lip, blindness or poor sight, deafness, visible imperfections of the complexion not related with disease (congenital or acquired through injury or burns) or acquired disability (e.g. amputation of limbs)… Physical defects like this may… disturb an individual’s relationship with his environment – so-called homilopathy – which then lead to a negative-construed individualism which prevents conduct based on empathy, altruism and dialogue, preventing the fulfilment of an important duty, mainly in relation to the welfare of the spouse.  (The Rev. Dr. Edward Sitnik, Catholic University of Lublin)
Obviously, the above disturbances and faults are merely examples. A complete list would be much longer, if at all possible to compile.
One should note that many of the above disturbances, both physical and mental, are permanent or incurable, therefore a person afflicted with them will never be able to enter into a canonically valid marriage. Of course he may succeed in having a church wedding, but this union will not be legally valid in any case, therefore in the event of any matrimonial misunderstanding, the matter may go before a court which will decree that the marriage was null from the very beginning and the other spouse will be able to legally reject the infirm spouse, with the Church’s approval. A sacramental marriage thus appears to be reserved only for a narrow group of physically and mentally “perfect” Catholics, whilst anyone who is “defective” is barred from marriage. Associations with the scandalous practices of eugenics appear by themselves.
What is more, looking at the above examples, one may notice that many of these features are very widespread and prosaic, such as egocentrism, workaholism, perfectionism, depression, neurosis, emotional changeability, fear, etc. Each of them may provide the basis on which to annul a marriage. Therefore the natural question arises: under the terms of canon 1095, is anyone at all qualified to marry? One can have serious doubts about this, and the statistics of episcopal courts saying about over 80% of cases ending in declaration of nullity show that these doubts are fully justified. Therefore, instead of talking about “valid” or “invalid” sacramental marriages, one should rather talk of marriages which are:
invalid, but not yet investigated by a court;
invalid, investigated by a court and declared to be null; and…
invalid, that have been mistakenly declared valid, merely through a lack of material evidence or through the incompetence of a lawyer.
There is probably no marriage that is not covered by an appropriate paragraph of the CIC. But if such a marriage does exist – between a super-husband and a super-wife who fulfil the requirements of canon 1095 and all others without a shadow of a doubt – they should be canonized on the spot…
If someone has not been convinced yet by the many biblical arguments for relational vision of marriage put forward in this article, they at least must recognize the evident absurdity and harmfulness of marital annulments. The annulments that result from nowhere else but from false understanding of the very nature of marriage and from subsequent inconsistency of the marriage doctrine.
The picture of marriage shown in the Scriptures differs drastically from that adopted in modern culture and in both civil and Church legislation. According to the Bible, marriage is a relationship, not an institution; a relationship initiated by God, not people; a spiritual and physical reality, not a legal-official one. These differences are crucial to the entire ethics of marriage.
In today’s society dominated by moral relativism, the Church remains the last institution that can still recall this true – divine – picture of marriage and halt the social degradation of marriage and the collapse of families. But before the Church can do this, it must first revise its own doctrine, which has diverged widely from the biblical pattern over past centuries and decades, so that it has “lost its taste” (Mat 5,13) and became in the eyes of society an empty moralizer, just another set of legal rules created by people, which can be adopted or rejected at will.
The Church must display anew the spiritual and biblical nature of marriage, not a legalistic one, and point out the key role of God not people in joining spouses. It must display the blessing of married life – presented in the biblical vision of “one flesh” that provides support and becomes a source of life for its parts – and not the curse of the merciless Law (Gal 3, 10; 1 Cor 15, 56), that which restrains spouses through numerous obligations and prohibitions of “conjugal bond” but is utterly unable to provide help in a crisis.
The Church should make a step back on its route to deeper and deeper regulation of marriages and perform deregulation by returning to its nineteen-hundred-year-long tradition of recognizing all relationships of “being one flesh” as lawful marriages, like the Bible does. The tradition that was halted not long ago, only in 1907, shortly before the global crisis of marriage and family began. Until today, the Church was utterly unable to stop this crisis, which has been increasing steadily year by year and decade by decade. Maybe now, after hundred years, when Pope Francis has called for an extraordinary synod of bishops to discuss problems of the family, it is the right time to reflect again on the institutionalization of marriage and check if it really helped the People of God build strong successful families that can pass their faith along to the next generation?
In the introduction I said that I have been in a sacramental marriage for 12 years. That is not quite true…
Twelve years ago I began to live in a factual marriage (“one flesh”), in other words the kind of marriage the Bible talks about and God sees. I have no doubt that it was arranged by God. But 7 years ago the marriage was disrupted by my wife, who left me and who feels that her action was justified by the Church’s practice of annulling marriages. Thus, I have not been in a (factual) marriage for 7 years.
Also 12 years ago, I concluded a civil marriage. This has recently been dissolved by a civil divorce, at my wife’s request. For betrayal, break-up of the family and separation of the children from their father, the court awarded her alimony and care over the children.
However, despite our close ties with the Church, I have never been in a sacramental marriage – the only kind recognized by the Church – for even though we had a church wedding, neither my wife nor me fulfilled 100% of the conditions laid down in the Code of Canon Law, especially canon 1095 point 3.
 Orzeczenie nieważności małżeństwa w liczbach [Declarations of nullity of marriage in figures], Statistical Institute of the Catholic Church, -http://www.iskk.pl/kosciolnaswiecie/78-malzenstwa.html
 Francis’ Press Conference on Return Flight From Brazil (Part 2), ZENIT, 2.08.2013,
-http://www.zenit.org/en/articles/francis-press-conference-on-return-flight-from-brazil-part-2 (access: 27.05.2014)
 A. Sarmiento, Małżeństwo chrześcijańskie. Podręcznik teologii małżeństwa i rodziny [Christian marriage. A handbook of the theology of marriage and family], Kraków 2002.
And: P.-M. Gajda, Prawo małżeńskie Kościoła Katolickiego [Matrimonial law of the Cathoilic Church], Tarnów 2000.
 A. Sobczak, Sakrament małżeństwa – krótki rys historyczny [The sacrament of marriage – a brief historical outline] Mateusz, -http://mateusz.pl/rodzina/as-malzenstwo.htm (access: 29.10.2013).
 P.-M. Gajda, op. cit., chapter 1.1.
 P.-M. Gajda, op. cit., chapter 4.
 M. Królik, Prawda o małżeństwie w interesie Kościoła [The truth about marriage in the Church’s interests] Człowiek-Rodzina-Prawo nr 1/2012, Lublin.
 M. Góral, Psychiczna niezdolność do podjęcia istotnych obowiązków małżeńskich [Psychological ineptitude to undertake important matrimonial obligations], Infor.pl, 2012, -http://www.infor.pl/prawo/rozwody/rozwod-koscielny/304936,Psychiczna-niezdolnosc-do-podjecia-istotnych-obowiazkow-malzenskich.html
 Orzeczenie nieważności małżeństwa w liczbach [Declarations of nullity of marriage in figures], op. cit.
 M. Kołbuc, Orzeczenie nieważności małżeństwa z tytułu przymusu moralnego kan. 1103 KPK 1983 [Declaration of nullity of marriage for moral compulsion can. 1103 CIC 1983], Człowiek-Rodzina-Prawo nr 9/2012, Lublin.
K. Pokorski, Niedojrzałość emocjonalna jako przyczyna nieważności małżeństwa w orzecznictwie sądów kościelnych [Emotional immaturity as the reason for the nullity of marriages in court jurisdiction], Człowiek-Rodzina-Prawo nr 9/2012, Lublin.
R. Kornat, Małżeństwo z przymusu a proces kościelny [Marriage through compulsion and Church court proceedings], Infor.pl, 2011, -http://www.infor.pl/prawo/rozwody/rozwod-koscielny/265819,Malzenstwo-z-przymusu-a-proces-koscielny.html
 A. Bolesta, Niezdolność natury psychicznej do podjęcia istotnych obowiązków małżeńskich – przykłady [Psychological inability to undertake import matrimonial obligations – examples], Infor.pl, 2013, -http://www.infor.pl/prawo/rozwody/rozwod-koscielny/316226,Niezdolnosc-natury-psychicznej-do-podjecia-istotnych-obowiazkow-malzenskich-przyklady.html
 R. Kornat, Niezdolność natury psychicznej – „unieważnienie małżeństwa” [Psychological ineptitude – nullity of marriage], Infor.pl, 2011, -http://www.infor.pl/prawo/rozwody/rozwod-koscielny/291713,Niezdolnosc-natury-psychicznej-uniewaznienie-malzenstwa.html
 K. Pokorski, op. cit.
 W. Góralski, Błąd co do przymiotu osoby (kan. 1097 § 2 Kpk ), brak rozeznania oceniającego (kan. 1095, N. 2) i niezdolność do podjęcia istotnych obowiązków małżeńskich (kan. 1095, N. 3 Kpk ) w świetle wyroku Roty Rzymskiej c. De Angelis z 16 czerwca 2006 roku [Error regarding a person (canon 1097 § 2 CIC), lack of evaluating information (canon 1095 N.2), inability to undertake important matrimonial duties (canon 1095 N.3 CIC) in the light of the judgment by the Rota of Rome, c. De Angelis 16 June 2006], Ius Matrimoniale 17 (23) 2012, Warszawa, p. 149.
 Ibidem, p. 155.
 Ibidem, p. 146.
 A. Bolesta, op. cit.
 K. Mierzejewski, Pracoholizm jako przyczyna niezdolności do zawarcia małżeństwa [Workaholism as the cause of an inability to marry], Ius Matrimoniale 16 (22) 2011, Warszawa.
 A. Bolesta, Zaburzenia odżywiania przyczyną nieważności małżeństwa kościelnego [Nutritional disorders as the cause of the nullity of a church marriage], Infor.pl, 2013, -http://www.infor.pl/prawo/rozwody/rozwod-koscielny/316225,Zaburzenia-odzywiania-przyczyna-niewaznosci-malzenstwa-koscielnego.html
 Kancelaria Kanoniczna Michał Poczmański, Proces kościelny [Church trial],
-http://www.kancelaria-kanoniczna.com/Proces_Koscielny.php (access: 30.10.2013).
 E. Sitnik, Osobowość homilopatyczna jako przyczyna niezdolności do podjęcia istotnych obowiązków małżeńskich [Homilopathic personality as the case of an inability to undertake significant matrimonial obligations] Człowiek-Rodzina-Prawo no. 6/2012, Lublin.
 International Theological Commission, Sensus Fidei in the Life of the Church, 2014; -http://www.vatican.va/roman_curia/congregations/cfaith/cti_documents/rc_cti_20140610_sensus-fidei_en.html