Tribunals and Authority

After a number of interesting conversations here on CAF, I thought it would be good to post the following description of the authority of tribunals to declare marriages valid or invalid.

The Church uses its supreme authority to obligate Catholics in numerous ways beyond what merely Divine law enjoins, such as the confession of sins once a year, the Sunday obligation, and so on. These two obligations bind under pain of sin. There are exceptions to the examples I gave, because they are “positive” laws - laws which tell one to DO something rather than NOT do something. A negative law is something which forbids some behavior or act. There are some negative laws of the Church which contain explicit and implicit exceptions, such as fasting and abstinence (a very complex topic - perhaps this could even be characterized as a positive law, seeing as it is “abstinence” and “fasting” which are enjoined, rather than those things being defined by the law itself), or the age requirement for ordination. However, the latter also has an explicit “no exception exception” (see c. 1031 s. 4), the violation of which would certainly constitute sin. An example of a gravely important negative ecclesiastical law resting immediately upon Divine law, which admits of no exceptions, is the consecration of a bishop without the approval of the Holy See… This constitutes a schismatic act.

Another example of a grave negative ecclesiastical law resting on Divine law regards the usurpation of a tribunal or contradiction of a negative decision of a tribunal in the case of a declaration of nullity of a prior bond. This constitutes two acts - one a rupture of the order of law (vigilantism), the other its consummation, which is adultery: the only possible (possible!) exception could be that of a person in what is called a “conflict marriage,” where there is no objective evidence to bring before a tribunal (tribunals do not exist to serve this function… for more, see Dr. Ed Peter’s post here: ).

Let us see what the Catechism says on declarations of nullity:

1629 For this reason (or for other reasons that render the marriage null and void) the Church, after an examination of the situation by the competent ecclesiastical tribunal, can declare the nullity of a marriage, i.e., that the marriage never existed. In this case the contracting parties are free to marry, provided the natural obligations of a previous union are discharged.

We can see that the CCC points out that it is “the Church,” in “the competent ecclesiastical tribunal,” who can do this. The Church provides this mechanism for the simple reason that it must be used to obtain the effect of a declaration of nullity, dispensing one from the obligations which came with a public vow which by its nature has enormously important repercussions for both of the individuals contracting it and the community in which they live. As with all such public, solemn vows, we may not dispense ourselves from them.

We should note that the Church understands its authority to preside over cases of disputed validity of marriages with respect to Catholics to reside exclusively within the competent ecclesiastical forum, called a tribunal (c. 1075 s. 2, c. 1401, c. 1671). Recall that lack of canonical form is also an invalidating character of an attempted marriage: one may not excuse himself/herself from this law, but rather, the appropriate authority must be approached for a dispensation. These attempted marriages really are invalid without it. (Let us also note here that there are cases of invincible ignorance, of ecclesiastical law and of the facts of the matter, which introduces the division between material and formal sin – even though they are invalidly married, this knowledge is not available to them. Radical sanation provides a solution to such cases. But we should always presume that sane, baptized adults have the Divine law available to them, as it is written on their hearts - they are not invincibly ignorant of the right meaning of the 6th Commandment in its basic application by Christ, which is not to divorce and remarry. They must obtain sufficient certainty they are not bound to the prior bond of a baptized person still living. That certainty, the Church says, comes from the competent forum.)

It has been pointed out repeatedly in prior discussions that tribunals can make mistakes. I don’t think anybody disputes this, but nobody has shown that this would allow a petitioner to presume to usurp and/or contradict a tribunal in favor of his/her own will, to the detriment of the rights of the one in the prior union and also with possible grave scandal given to the faithful. If a tribunal makes a decision in favor of the prior union, then it must be treated as binding. But let us imagine a possible case where the so-called “internal forum solution” (or “Kasper Proposal”) is applied.

Suppose a man receives a negative decision from the appropriate tribunal and has a failed appeal to Rome. The man then civilly marries another woman – outside the Church, of course – and proceeds to live with her “more uxorio” (in a habitually sexual way). He approaches Father Pastor, explains that the tribunal didn’t understand his evidence, there was another witness he could have provided in his favor, and that his supposed wife lied in her testimony. Father Pastor says, “Okay, I see, I don’t think it was a valid marriage. You may go to Holy Communion publicly.” One day, the wife in the prior union shows up looking for him and tells Father Pastor she wants to attempt to reconcile with her husband, because he abandoned her and she is in a desperate situation with their children. She further explains that they enjoyed a wonderful relationship until he suffered a major setback at work, became depressed, descended into alcoholism, and became very abusive and manipulative of her. How would Father Pastor explain himself? How could he justify his decision to allow this man to present himself publicly for Holy Communion (or even to present himself for Holy Communion privately, supposing his sexual acts are not always done under some kind of grave duress which would mitigate their culpability, and he does not have some mental deficiency which would render him unable to make a resolution to refrain from such acts)? What kind of scandal to her and to the community might come of this? The truth is that Father has no idea who has told the truth… He was never in a position to examine the case, not only because of a lack of perspective, a lack of objectivity (he must judge one of his own parishioner’s cases), and also possibly a lack of education in canon law, but, most importantly, HE DOES NOT HAVE THE AUTHORITY. And certainly, the man himself does not have the authority, let alone being an interested party. It is a disadvantage to non-Catholics that they do not have the benefit of a tribunal to help them discern the truth…

Let us consider an analogy with civil law… Mr. Moneybags owns a bank. He sees Mr. Crook rob his bank and kill his teller. Moneybags calls his cop friend, Mr. Badge. The law of the land is that these criminals must be put to death. Moneybags and Badge find Crook and put Crook into Moneybags’ private electric chair and execute him. Would this be just? Or, suppose Crook is, somehow, found “not guilty” in court, and then Moneybags consults Badge privately, and they determine that the court was wrong and Crook should be put to death, and then they actually execute him. Would this be just?

It would not be just, even if Crook really did rob the bank and kill the teller, and even if Badge and Moneybags know it. It belongs to God alone to judge this case, if the court should fail. This is the order of society.

The order of the Church is similar. Even if a person really does know, without the help of a tribunal, that his/her marriage is invalid, or a petitioner knows his/her marriage really is invalid despite a tribunal’s denial of his/her petition, the person in the prior union really has the right to be treated as the spouse of the petitioner just as Crook has the right not to be put to death. Marriage, family, and the sacraments are certainly just as serious as life and death, no? The usurpation or contradiction of the order of civil law is inadmissible: the fruit of vigilantism in the civil case I described is the sin of murder. The fruit of vigilantism in the ecclesiastical case I described is the sin of adultery.

Now, the Holy Father could legislate that pastors, for example, could be a competent court. He has not done this. There is no such language in Amoris Laetitia, Mitis Iudex, or any document, which would indicate clearly that a private member of the faithful, a pastor, or any confessor may replace the tribunal or overturn its judgment. Doing so would, I suggest, be a total disaster for reasons already explored – interested motives, bias, lack of education, limited perspective. These decisions must also be promulgated sufficiently, which would be difficult for such persons, especially confessors. (See c. 130.)

The judgments of tribunals, therefore, remain necessary in their positive decisions and binding in their negative declarations. The favor of law rightly rests on the prior union until proven otherwise – seemingly, it would not be inconsistent with the logic of the Kasper Proposal to reverse the application of the system to declare a presumably valid marriage according to law invalid, thus binding a person despite the favor of law. In both cases, rights are violated by a judgment of an illegitimate court (and, I would suggest, a court which is fundamentally ill-equipped to make fair judgments, even if they became lawfully deputed).

Tribunals help us to find the truth. They are not an obstacle to overcome, they are a tool for authentic discernment, according to the law of the Church. A public and definitive judgment is therefore at once both binding and freeing. Because of the binding character of the judgment, even a wrong negative judgment must be seen as indicative of the will of God for the petitioner, just as it is in civil law.

Discussions about the right application of c. 915 and c. 916 to the divorced and civilly remarried must take place with a sound understanding of the role of the tribunal and its authority, among other things (namely, the meaning of these easily misunderstood canons – especially c. 915, which is not actually about the state of grace – the right application of the principle of good faith, an understanding of what “scandal” actually is and how it works in particular parishes, and the general principles of moral theology). I hope that this can be helpful for obtaining that understanding.

I am happy to clarify anything I have said, but I do think that I have laid out a thorough case for the binding nature of tribunal decisions. I should add that a person’s conscience may convict him/her against a tribunal’s decision against a prior bond with respect to himself/herself; that is, he/she may see himself/herself as not free to marry and live accordingly, though he/she may not bind the party in the prior union to act accordingly. The repercussions of attempting marriage while in this state of subjective certainty about the validity of a prior bond are another discussion.

This will probably be my last hurrah on CAF – I will depart with the changes, due any day now. When they come, do not expect to see me anymore!

Communion (which is “Eucharistic”) at all costs - especially let there be no meaning to communion.

Smarties mentality.

This is precisely what shouldn’t happen. Even under Amoris, it’s not a question of a local priest making a canonical decision that overrules the authority of the tribunal.

Yes… And yet I have seen this position advanced by multiple individuals here. It seems to be exactly what is being envisioned by some prelates as well. That we are actually talking about having “no king in Israel” can get lost in the largely irrelevant discussion of moral culpability and the various confusions over the relationship between scandal, good faith, and c. 915. This act of vigilantism is there - except in Malta, where one must only “feel at peace with God” - whatever that means.

e_c, let me start off by saying that I think the more conservative bishops have the right of how AL is to ve understood (though I will submit to the Church as soon as there appears to be clarity). I also agree 100% that no priest may use his subjective opinion to countermand the tribunal’s decision on the matter. Discernment shouldn’t be based on whether or not the tribunal is wrong. However, one of the more intriguing explanations I’ve seen for permitting the D&R to communion does not follow from the priest finding differently than the tribunal. The tribunal’s decision may be one hundred percent correct, but the priest might discern whether or not the individuals involved are currently in a state of mortal sin. The proposal is that this irregular relationship could exist but that the couple (or at least one person) in it might still be in a state of grace because of insufficient criteria for mortal sin.

Hopefully that makes sense. I feel that I’ve explained this poorly.

Yes, that is right - but remember, c. 915 is not primarily concerned with the state of grace… A minister of Holy Communion may be quite sure a person is in grace but still might be obliged to refuse that individual the Sacrament publicly, but he might administer it privately; on the contrary, a minister may be quite sure a person is not in grace but still might be obliged to administer the Sacrament publicly, though he might refuse privately.

Just as well, while it is conceivable that some, many, or even all individual adulterous acts within an irregular union do not rise to culpability sufficient for mortal sin, it beggars belief that anything other than a persistent acute fear or mental illness would allow one to presume to continue those acts habitually without incurring grave guilt. Such an investigation would seem to be important for administering Holy Communion in private or giving absolution in confession - the latter would at least require a sincere resolution to try not to do those acts anymore.

DISCLAIMER: The views and opinions expressed in these forums do not necessarily reflect those of Catholic Answers. For official apologetics resources please visit