The responses which were collected in preparation for the coming Synod on the Family have led to more discussion concerning the question of how to respond to the pastoral reality of divorce and remarriage. It is not a small matter. Not only are the numbers of persons affected significant, but the question also seems to be, as the report of the German bishops phrased it, that people see the situation as one in which the Church is failing to show mercy. Many divorced persons see their prior marriage as having failed, rather than never having been a marriage, so seeking a decree of nullity seems to them to be dishonest. We have a clash, not so much over whether marriage ought to be lifelong, but what to do when it fails. We have a clash of interpretations, both stemming from strongly held beliefs about what is right and what is wrong, what is truthful and what is dishonest.

No one on any side really wants to be merciless, as far as I can tell. But the crux of the issue is often presented as “the Church is upholding the meaning of marriage itself as a lifelong, indissoluble union, according to the word and command of Jesus.” The arrangement of Catholic marriage polity, and specifically the practice of recognizing the possibility of a licit remarriage only if a decree of nullity of the prior bond is obtained, seems to be driven by the conviction that in order to remain faithful to the teachings of Jesus we must hold that divorce is impossible. This past Sunday’s gospel reading brought the challenging words of Jesus before us again.

When we are evaluating the pros and cons of various proposals, however, it important to realize that it’s not actually as simple as all that.

To get a fuller picture, it is necessary to consider the history of the sacrament of marriage. The contrast between patristic and scholastic understandings with respect to the indissolubility of marriage is noteworthy. It was usefully pinpointed by Joseph Martos in his book on the history of the sacraments as follows:

Following the lead of Augustine, the scholastics argued that this metaphysical bond [of matrimony] was unbreakable since it was a sign of the equally unbreakable union between Christ and the church. It was not, as in the early church, that marriage as a sacred reality should not be dissolved; now it was argued that the marriage bond as a sacred reality could not be dissolved. According to the church fathers the dissolution of marriage was possible but not permissible; according to the schoolmen it was not permissible because it was not possible. Thus the absolute prohibition against divorce arose in the twelfth century both as a canonical regulation supported by a sacramental theory, and as a theological doctrine buttressed by ecclesiastical law. The two came hand in hand.

(Doors to the Sacred: A Historical Introduction to Sacraments in the Catholic Church, revised edition, Ligouri/Triumph, 2001, p. 377)

Not permissible or not possible? These are two different things. If we regard divorce as impermissible (as we do a host of other deeds) and someone does it anyway, perhaps with irreparable consequences, the possibility remains open to seek forgiveness through the Sacrament of Penance and be reconciled. If not possible, then the system of annulments is the way to respond because if it was ever a marriage, it is still binding: the definition determines this outcome.

The sacramental-legal synthesis which we have inherited from the Middle Ages is venerable, but is itself the result of development. Should it be considered simply the self-evident consequence of obedience to the command of Jesus? Or can this synthesis be revisited when pressing pastoral realities demand it–without putting the teaching of Jesus into the shade? Is an increase in annulments the only way forward for those who wish to readmit divorced and remarried Catholics to the sacraments, or are there other ways forward that have their own integrity?

I believe that most Catholics do NOT want marriage to be defined as a contract to be entered into and left at will. The sacramentality and permanence of marriage is important to them, as is fidelity to the teaching of Jesus. If that’s the case, then what are we really disagreeing about? I suspect it’s this synthesis of law and sacramental theology. It’s important that we distinguish, lest the false dichotomy of “mercy” vs. “faithfulness” close off a discussion that is timely and necessary.