David Bentley Hart has recently suggested that the Eastern Orthodox practice of divorce is more coherent and compassionate than the Catholic practice of annulment.
The key premise of his argument is that divorce, though always sad, is sometimes the best option for couples; sometimes even for couples whose marriages the Catholic Church considers indissoluble. As he says ‘we have all seen truly disastrous marriages, and we all know that there are very few situations in life more spiritually, psychologically and morally devastating’.
His second premise is that Rome has accepted this brutal truth, but tries to hide the fact. Pointing out that the Catholic Church and the Orthodox Churches respectively grant annulments and divorces on much the same grounds, and in large numbers, he implies that Rome now effectively allows divorce, but that she insists on calling it annulment only in order to save face; a ‘cynical’ move.
For Bentley Hart, this ‘cruel’ and ‘logically contradictory’ expedient has an absurd consequence: it ‘provides a license to regard every marriage as provisional only’. Divorce at least acknowledges that a real marriage has been abandoned; but annulment means that Catholics can at any moment find that their marriage, perhaps decades-long, was never a marriage at all. He cites the case of one woman, abandoned by means of a questionable annulment, to whom ‘it seemed both humiliating and dishonest to pretend that [her relationship] was in any sense something less than a true marriage’.
Interwoven with this picture of an unpastoral, over-theorizing, rigorist Roman Church, is Bentley Hart’s account of the development of the doctrine of marriage from the earliest times onwards. According to him, marriage doctrine was once far more flexible than Rome’s is today; and this proves that Rome has unreasonably narrowed and rationalized an ‘ambiguous’ history.
This, then, is Bentley Hart’s case; and it is a credible and emotive one. In what follows, however, I shall show that Bentley Hart’s reading of history is tendentious, and his argument flawed; and I will argue that current Roman doctrine can be read as a precisification of earlier practice; that it is neither incoherent nor cruel; that, moreover, Rome alone, by her rigour, avoids reducing the doctrine of sacramental marriage to absurdity.
But to engage with Bentley Hart’s argument meaningfully, I must first define terms. For loose terminology undermines far too many debates about marriage and divorce—concepts which Catholics, the Orthodox and the wider world all understand differently. After all, if one is Catholic, and thinks that a relationship contracted as a marriage may, for any one of various reasons, later turn out to be invalid, then ‘marriage’ will mean something different for one than it would for a member of a culture that accepted few or no conditions on the validity of marriages. Indeed, the Catholic and this other man will also understand ‘divorce’ differently: for the Catholic, it will mean the ending of a valid marriage; but the other man may not have a comparable concept of a ‘valid’ marriage, in which case ‘divorce’ for him will refer to the ending of any apparent marriage—whether or not a Catholic would call it ‘valid’. If these two people discussed marriage and divorce, they would most probably talk past each other, unless they carefully defined terms first.
Let us, then, define institutional marriage as any relationship that involves the outward form of a contraction of marriage, whether valid in Roman terms or not, and where ‘contraction of marriage’ is understood as the culture or cultures of the contracting parties would understand it. An institutional marriage may be sacramental or natural: an institutional marriage is sacramental if and only if the man and the woman are baptized Christians; otherwise it is natural. We will also talk of valid and invalid institutional marriages, understanding those adjectives as referring to the Catholic idea of marriage validity.
Let us secondly define ‘primitive divorce’ as any legal means of ending an institutional marriage in any culture that does not have the concept and practice of Catholic annulment. Orthodox ‘divorce’, and the world’s ‘divorce’, are, then ‘primitive divorce’. Lastly, let us say that all unqualified talk of ‘marriage’, ‘divorce’ and ‘annulment’ will refer to the Catholic conceptions of those terms.
We are now in a position to see whether Bentley Hart’s emotive argument against the cruelty of trapping people in unhappy marriages, holds together. Is the Church cruel to insist that some marriages are indissoluble?
To answer this, we first need to be clear which marriages Rome says are indissoluble. She says: validly contracted and consummated sacramental marriages are indissoluble. That’s all. As we shall see later, Rome can and often does dissolve validly contracted and consummated natural marriages. (Here we may also note that it is arguable that few natural marriages in the Western and Orthodox world are validly contracted in the first place; for they are rarely fully open to life, or to the complete mutual self-giving of the spouses: hardly any Western non-Catholics don’t employ artificial contraception.).
So, then: if Rome cruelly traps people in morally devastating marriages, these must be validly contracted, sacramental, consummated, morally devastating marriages. Now, the point I want to emphasize in my article is that, if one thinks that such marriages exist, one will find Bentley Hart’s whole argument, including his historical argument, highly plausible. One will accept Bentley Hart’s picture of an ancient Church that cared little about family or marriage, seeing it as steeped in such carnality that it was a matter for (at most) pragmatic moral discipline, not idealistic moral discipline; a Church that certainly did not think marriage a sacrament. One will see the ‘Christian family’ as a sentimental modern notion that Rome has fetishized with her moral and logical absolutism. One will see a New Testament that prohibits only the exploitative kinds of putting away of wives, not modern, grown-up, freely-chosen divorce. One will see Augustine himself wavering. Now, as we shall see, Bentley Hart’s account, which runs much as the above, is poorly reasoned. But my point is, one will be inclined to accept it if one really believes that the Catholic Church is trapping people in indissoluble torture; and one’s motives for doing so will be noble.
So the pivotal question is: is she? Are there validly contracted and consummated sacramental marriages which offer no prospect but endless psychological and moral devastation? (Note that the permanence of suffering without prospect of improvement seems to be important here: everyone concedes that good and valid marriages can go through tortuous phases).
To answer this, we must consider the conditions for the validity of a Christian marriage as Catholic marriage tribunals apply them. For, as Bentley Hart mentions, the Church now grants many annulments; hence it is evident that many of today’s marriages do not meet her requirements. It is only those that do, that the Church insists are indissoluble. So what are the requirements? As I understand the matter, grounds for annulment that tribunals will consider include: psychic immaturity or incapacity, as manifested in cruel or frivolous treatment of the other spouse, a failure to put effort into the marriage, or a failure to seek personal purity and a mindset ordered toward sexual exclusivity; failure to regard the union as lifelong and exclusive in the first place; failure to accept the possibility of offspring / a lack of openness to life; and anything else that counts as a ‘grave defect of discretion of judgment concerning the essential matrimonial rights and duties mutually to be handed over and accepted’. (I omit the more objective grounds such as the impediments of holy orders and of permanent impotence).
This implies that valid Christian marriages will have some quite specific characteristics. And if a baptized man and a baptized woman, having the psychic capacity and the physical competence to fulfil their vow, vow a lifelong bond, open to life—and so having all the joys of complementarity, and the mutual respect that comes therefrom—; if they consummate the marriage; if they seek the means of grace; if they pray for each other; if they pursue purity of heart—if they do all this, then I think that we can indeed assert that their marriage will not be an irremediable source of moral and psychological devastation for them. For even if they fail to take the measures just mentioned, and the marriage flounders, they will always be able to repair it by taking said measures (indeed both parties will have a duty to do so). It is precisely this guarantee that led the Church to recognize in such marriages the deepest guarantee of all—that of a sacrament. Bentley Hart may speak with compassion, but he is far too cynical on this point; here speaks a man who can see no ideals in history (only ‘nothing but ambiguity’).
Here we might also add that, since a great many of the marriages now contracted between Western Christians probably fail to meet the strict conditions of validity mentioned above, the Church is perhaps acting broadly correctly in permitting a rather greater number of annulments than it once did. As we shall see, however, the Church’s insistence on the principle of the indissolubility of valid sacramental-and-consummated marriages is a very important one.
Now, my claim that valid and consummated sacramental marriages will never become incorrigible sources of devastation sounds like a bold one. But consider this. If there is no kind of marriage guaranteed to work, if no ideals apply, then what becomes of Bentley Hart’s compassion for the lady mentioned above, who was a victim of annulment? For he presents this compassion as the driving concern of his paper: the lady had found it ‘humiliating and dishonest’ to have to say that she had had no true marriage. And indeed he is surely right to pity the lady. But here’s the problem for his argument: if, as he implies, marriage is but a squalid, pragmatic affair to which no ideals can stick, then why would the lady find it humiliating to find out that she had not been in one? There would be no reason for her to miss the dignity of such an inherently undignified state of life.
We must therefore surely conclude the lady herself has a higher view of marriage than Bentley Hart. To the poor lady a Catholic can say that some annulments are farces, that even Rome’s ruling cannot change the truth of a valid and consummated sacramental marriage (as canon law implies), and that, even if her marriage really had been invalid all along, she had had a putative marriage, which is just as honourable a thing as a real marriage, and which, according to canon law, gives rise to natural obligations. Bentley Hart, on the other hand, has nothing to offer her that accounts coherently for her feelings: he would undermine the very ideal she pines to have partaken in.
With this in mind let us turn to Bentley Hart’s historical narrative. It is specious.
We begin with the Bible. Bentley Hart reminds us that we should be careful about translating biblical words as ‘divorce’: we should consider ‘whether we are not attempting to make sense of both the past and the present in terms of practices very different from our own’. But he does not follow his own advice. ‘Neither St Paul nor Christ… absolutely forbade every kind of divorce’, he says, as if this had clear implications for what Catholics now call ‘divorce’. Yet there was no concept of annulment at the time of Christ, nor did people of our Lord’s day hold any clear linguistic or conceptual distinction between, in Catholic terms, valid and invalid marriages. There was only institutional marriage, and primitive divorce. And some primitive divorces of institutional marriages—at least those effected before Pentecost—were clearly what Catholics would see as, in effect, annulments of invalid marriages. Indeed, many of the past primitive divorces St Paul seems to suffer at 1 Cor 7:27-28 would have happened before Pentecost, and so before the possibility of sacramental marriage regulated by the Church. Christ’s and St Paul’s failure to condemn all primitive divorces tells us nothing about the accuracy of modern Catholic marriage theology.
Bentley Hart also adduces 1 Cor 7:12-13, in which St Paul allows converts to remarry if their non-Christian spouses abandon them; Bentley Hart seems to think that the passage tells against the Catholic position. Unfortunately, however, he doesn’t seem to know about the Pauline and Petrine Privileges in Catholic canon law. The first (I’m simplifying a little) allows a convert to divorce a non-Christian spouse acquired before his or conversion, in favour of a prospective Christian spouse, if the non-Christian spouse is unwilling to continue ‘peaceful cohabitation without affront to God’. The second allows the same for a Christian married to a non-Christian even where the Christian was already baptized at the time of his/her marriage to the non-Christian. Both privileges are, as I understand it, grounded in this very passage.
We move now to Bentley Hart’s account of the early Church. The early Church’s understanding of marriage, he claims, was influenced by St Paul, who tolerated marriage only ‘grudgingly’. Well, St Paul would probably have expected the Day of Judgement to have come long ago, so naturally he thought marriage otiose. But this proves little: St Paul’s words reflect a deep truth about the intrinsic superiority of celibacy (an idea which was especially counter-cultural at the time, and which therefore needed especial emphasis); but they also reflect the less settled condition of the very first generation of Christians.
But Bentley Hart goes on. Early councils were pragmatic about marriage, allowing divorce, and, often, ways of penitence by which remarried divorcees could return to communion. For, following St Paul, they saw marriage as a messy, imperfect thing, not to be treated too idealistically: ‘marriage was not regarded as a worthy object of theological reflection’. Indeed:
As far as we can tell, amongst the peasantry of many lands, and for many centuries [‘throughout much of the Middle Ages’, that is], marital union was a remarkably mercurial sort of arrangement, one that coalesced and dissolved with considerable informality, as circumstances dictated. And the clergy, did not, for the most part, give a damn.
Moreover, Bentley Hart says that the ‘Christian family’ is a sentimental 19th century invention.
Well, there is an equivocation here. Yes, the clergy often did not feel that they had the wherewithal to regulate peasants’ couplings, nor that there was much point trying. But if Bentley Hart is trying to give us the impression that mediaeval clergy did not think stereotypical peasants’ sexual behaviour sinful—if that is what he is trying to suggest by saying that they did not ‘give a damn’—then his argument doesn’t square with mediaeval clergymen’s writings.
Besides, granted that the early and Dark Age Church ‘did not think marriage a worthy object of theological reflection’, why does Bentley Hart think it a good idea to place so much weight on its documented decrees about marriage?
What’s more, even his reading of the early councils and synods is poor. For one thing, having failed to define terms, he neglects to mention that the Church of this time still had only the ‘world’s’ basic concepts of marriage: institutional marriage and primitive divorce. Given this, the rulings of the early Church, which for the most part declared divorce to be sinful (except perhaps divorce for adultery or abandonment), can easily be read as grasping for truths that the Church hadn’t yet fully digested. If primitive divorce was sometimes sinful divorce, sometimes Pauline or Petrine divorce, and sometimes, in effect, annulment (to use later Catholic terminology for realities that were always present), then no wonder the early councils tolerated primitive divorce, but thought it was (usually) sinful: they hadn’t yet developed the resources to categorize the various kinds of relationship-ending in the right way, and therefore to see clearly what was going on.
Bentley Hart also cites a more promiscuous precedent, the Council in Trullo (692), which allowed that men who had abandoned their wives and taken others could return to communion, following penance. This council was not received in the West, but Bentley Hart thinks that we can’t read too much into this fact. For he notes that Rome seemed not to demur from the council’s decrees on doctrinal grounds, but rather on technical or political ones. Well, so what? All the true Councils of the Church were unedifyingly political, but we see them as divinely guaranteed. As far as councils are concerned, providence works through politics.
Indeed, the West, as Bentley Hart concedes, became stricter about marriage ‘as the patristic world yielded to the Mediaeval’. According to Bentley Hart, however, only a ‘militant Newmanian’ would see providence in this. Well, Bentley Hart, seeing no patterns in history, presumably sees no providence in anything; but by ‘militant Newmanian’ he seems to mean ‘faithful Catholic’. Nor, by the way, did the Church declare marriage to be a sacrament quite as late as Bentley Hart implies: the Council of Verona of 1184 declared it to be so, at just the time when, as I understand it, sacramental theology was starting to attain a new sophistication.
Lastly, on the question of the newness of the notion of the ‘Christian family’, Bentley Hart is, for a change, half right. The phrase ‘the Christian family’ is, I believe, of Protestant origin, and is often used to point to a rather sentimental and self-affirming conception of family life. However, family figures such as St Joseph, St Anne and St Joachim—not to mention Our Lady—attracted cult very early: Justinian dedicated a church to St Anne in 550.
Nor is Bentley Hart’s batting aside of St Augustine convincing. For he says that the greatest mind of the Faith’s first millennium ‘while firmly convinced that marriage should as a rule be indissoluble, nonetheless confessed in his Retractions that he had no final answer on the issue.’ Yes, but what did his doubt concern? Answer: whether people who had divorced their spouses on the grounds of adultery should be allowed to remarry.
The background to this needs to be explained. Virtually every theologian up to St Augustine’s day thought that primitive divorce in the case of adultery was, in general, clearly justified on scriptural grounds, specifically Matt 5:31-32 and Matt 19:9—a natural assumption for early theologians to make. Furthermore, most of them thought that people who had divorced their spouses on such grounds could rightly remarry. In St Augustine’s day, the first of these positions looked unassailable. But St Augustine cavilled at the second, which seems a natural consequence of the first. Why? Could it not be that he had no clear answers on the second because he had not reconciled his mind to the first? That he was grasping for a distinction between valid and consummated sacramental marriages, which cannot be dissolved on grounds of adultery, and other institutional marriages? After all, it is probably often in invalid and/or natural marriages that adultery happens; but it is not always so. I say again: if divorce for adultery is legitimate, it seems utterly natural to let people remarry after divorcing adulterous spouses. It’s hard to see why a person would object to this unless they were unsure that primitive divorce for adultery was in fact always permissible in the first place. Indeed, St Augustine did have difficulty understanding the meaning of ‘adultery’ (Latin fornificatio, Greek porneia) in Christ’s words in the aforementioned passages of Matthew. Clearly, he struggled on the whole question: but not in a way that gives any succour to Bentley Hart’s argument.
Lastly: even Bentley Hart’s supposed ‘embarrassing’ example of papally-granted divorce is phoney. Yes, the pope in some way ended or annulled the marriage of Gilbert de Clare to Alice de Lusignan. But what Bentley Hart doesn’t mention is the age at which Gilbert contracted this marriage. He was ten years old. Now, as far as I’m aware, the minimum age limit for the contraction of marriage at this time was that given in the Decretals of Gratian, seven years. (In those more dynastic times marriages were often contracted long before they were consummated). But even if Gilbert’s marriage were valid, one might very plausibly argue that a ten-year-old cannot make a sacramental marriage.
Bentley Hart’s historical argument, then, is a house of cards. But before I end by considering why the Church considers certain marriages to be sacraments, I must also address Bentley Hart’s argument that, because of annulment, all Catholic marriages are, in effect, provisional. Here one must simply say that anyone who intends to marry ought to try to make sure that his or her prospective spouse has the psyche and will required to form a valid marriage. If one were to have any reason to suspect that a supposed priest were an imposter, one won’t receive a sacrament from him. Similarly, if one has any reason to suspect that one’s prospective spouse is defective as a co-minister of the sacrament of matrimony, one shouldn’t try to make that sacrament with him/her.
People can, of course, be deceived by prospective spouses, and annulment exists to deal with such cases. But annulment tribunals, when functioning properly, do not make all Christian marriages feel insecure, because committed Christian couples can usually trust each other not to have been deceiving each other at the point of their wedding.
Nevertheless, Bentley Hart does diagnose a genuine problem for the Catholic Church here—albeit that he offers the wrong cure. Marriage tribunals that regularly declare annulments on spurious grounds do indeed undermine marital stability, and tempt people to break away from perfectly good and viable marriages. Indeed, it is quite possible that the woman Bentley Hart mentions was the victim of a bad tribunal decision. Perhaps her tribunal ought to have insisted that her marriage was indissoluble; such a decision might even have led her husband to return to his marital duties. Well, tribunals can be reformed, excessive laxity corrected. But Bentley Hart would make such right decisions impossible forever.
Finally, then, we turn to the Church’s reasons for considering marriage a sacrament (which Bentley Hart does not consider). Here we must remember that the Bible does not only express ordinary ideas by ordinary usages of words, so that its best interpreters were the ones closest to it in time and culture; it also contains mysteries that the Church may take ages to understand. One of these mysteries is the Church as Bride of Christ (strongly intimated in St Paul), the Gospels’ talk of Christ as a bridegroom, and the marriage of the lamb in Revelation. If we rightly see the Church as bride of Christ, then we must surely see the marriage of Christ to the Church as a symbol of an indissoluble union. But this image (or fullest reality) of ‘marriage’ is meaningless unless Christian ‘marriage’ itself, in some mysterious way, is more than the banal, ‘mercurial’ thing it usually is without grace. So we say that marriage between baptized Christians is a sacrament: the visible sign of Christ’s invisible and sanctifying union with his Church. Is this not beautiful? Is this not true? But if we’re Orthodox, how do we know that Christ won’t divorce us? For apparently the Orthodox think that even a valid and consummated sacramental marriage—with all that implies about the commitment that the two parties make—can still break down irretrievably. It is here that the true incoherence lies: and the Catholic Church must avoid it.
 Moreover, canon law states clearly that a marriage cannot be consummated by a contraceptive sexual act. However, couples whose marriage is invalid on ‘openness to life’ grounds may perhaps later convalidate it by ending their use of contraceptives, or at least by becoming open to life. I will leave elaboration of this point to canonists!
 Most people would say ‘psychological maturity’, but the Church rightly disguises between the truth of one’s psyche, and what the discipline of psychology would say about it.
 Can. 1095 The following are incapable of contracting marriage:
- those who lack the sufficient use of reason;
2) those who suffer from a grave defect of discretion of judgment concerning the essential matrimonial rights and duties mutually to be handed over and accepted;
3) those who are not able to assume the essential obligations of marriage for causes of a psychic nature.
Can. 1096 §1. For matrimonial consent to exist, the contracting parties must be at least not ignorant that marriage is a permanent partnership between a man and a woman ordered to the procreation of offspring by means of some sexual cooperation.
- 2. This ignorance is not presumed after puberty.
 Though ancient culture did make some vague connexion between holiness and celibacy, as the institution of the Vestal Virgins shows.
 Here and in the next paragraph I draw on David G. Hunter (2017) ‘Augustine’s Doubts on Divorce: Reconsiderations on Remarriage’, Augustinian Studies 48:1-2 pp.161-182
 Ibid pp.167f
 See the definition of a sacrament of the Council of Trent: ‘Symbolum rei sacrae, et invisibilis gratiae forma visibilis, sanctificandi vim habens’ (‘A symbol of something sacred, a visible form of invisible grace, having the power of sanctifying’) Sess. XIII, cap.3. I copy the Catholic Encyclopaedia’s translation.