| Canonical Studies, July 1993, pp. 63-72
(Mons. Mario F. Pompedda)
PAGE 1: (Click here)

This article treats the delicate question of admitting to the sacraments people who have been divorced and have entered into a second civil “marriage”, who are motivated, or so it is believed, by a conviction of conscience that their marriage is null, but who cannot introduce a case of nullity because they lack the proofs required b procedural law. We are treating the topic from the specific standpoint of its relationship to and reflection of canonical norms, that is, the procedure established by the Church for declaring the nullity of a marriage.

Thus we are prescinding from the purely moral or theological aspect, which is not per se posed by the question as it is formulated above; neither are we treating the sensitive topic of the pastoral care of the divorce who have remarried (cf. ch,. IV, part IV of the Apostolic Exhortation Familiaris consortio). Having thus defined the topic of this commentary, we can present it as follows.

Canon 130 of the new Code of Canon Law

1) First and foremost, it is necessary to bring to the reader’s attention the reminder made in canon 130 of the new Code of Canon Law, which states: “The power of governance is normally exercised in the external forum, but sometimes it is exercised in the internal forum only, but in such a way that the effects which its exercise normally has in the external forum are not acknowledged in this forum except as is established by law in certain instances”.

The canon clearly refers to the power of governance, also known as jurisdiction: however, one of the basic canonical principles, and most of all a theological one, is that in the Church there is no power – ordinary or delegated, proper or vicarious – which does not derive from a person who can legitimately bestow it: either through conferral of an office (and then the power is ordinary) or through a particular grant (and then it is delegated). Thus it follows that in no case can the judgement of an expert, however well informed and prudent, substitute for the exercise of that jurisdiction which is public but which remains exclusively in the private sphere.

Tackling a problem immediately related to our topic, we must consequently asset that the judgement of one’s confessor as to whether or not a marriage is valid must still be considered a private opinion because, since marriage is an external, juridical, social and ecclesial act, he has no competence in regard to it, nor had he received from anyone jurisdiction to judge it, since his office must be limited to the judgement and exercise of sacramental jurisdiction.

PAGE 2: (Click here)
PAGE 3: (Click here)
PAGE 4: (Click here)
PAGE 5: (Click here)
PAGE 6: (Click here)
PAGE 7: (Click here)