Most people on their wedding day are thinking about love. But the Catholic Church rule says that the necessary condition for a sacramental marriage is free and informed consent — not love. When marriages break down and after divorce Catholics seek a declaration of nullity, they are not asked “Did you love him?” They are asked “Did you know what a marriage is and did you freely enter into it?”

“When (I) talk to people who are not canonists, I’m very embarrassed to say that according to canon law it’s not love that makes a marriage but consent,” Canada’s top canon lawyer told The Catholic Register.

Msgr. Roch Pagé is judicial vicar of the Canadian Appeal Tribunal at the Canadian Conference of Catholic Bishops. The appeal tribunal finalizes every annulment case in Canada. Pagé is an emeritus professor of canon law at Saint Paul University in Ottawa, a guest professor at Catholic University of America and a past president of the Canadian Canon Law Society.

Nobody could be happier than Pagé that Pope Francis has called an extraordinary session of the Synod of Bishops for next October to discuss pastoral care of marriage and the family. Extraordinary synods are rare and called to deal with matters the Pope believes require immediate action.  The bishops are expected to discuss annulments and the problems faced by divorced and remarried Catholics.

It’s a problem that needs to be fixed and only the bishops can fix it, said Pagé.

Pope Francis set the stage for an examination of Catholic teaching and practice around marriage during a return flight from Brazil following World Youth Day in July. He said the problem is complex but Church law had to be reviewed because the ecclesiastical tribunals “are not sufficient.”

“I think this is the moment for mercy,” Francis told reporters. “The divorced may have access to the sacraments. The problem regards those who are in a second marriage … who cannot receive communion. I think that this problem should be studied within the framework of matrimonial pastoral care.”

If Francis needed any more reason to get the bishops talking about marriage, it came from Germany on Oct. 7 when the archdiocese of Freiburg announced new rules to readmit divorced and remarried Catholics in its jurisdiction back to the eucharistic table. This raised the prospect of some European dioceses going ahead with their own reform and creating widely divergent practice in Catholic dioceses around the world.

Frieburg has been asked to put its new rules on hold until after the synod.

The problem isn’t the Church law. The problem is trying to fix pastoral and theological problems with the application of law, said Pagé.

“What are we doing, canonists in tribunals? We are working on broken marriages from a mere juridical point of view,” Pagé said. “(The problem) is solvable on the condition that we stop trying to solve it from a juridical point of view.”

People who’ve been through an annulment might tend to agree.

“You’re looking for some comfort, some understanding, some guidance. What I got was legalism. What I got was a sense of exclusion,” a Catholic divorcee told The Catholic Register on the condition of anonymity.

It took four years for Steve (not his real name) to receive his final decree of nullity. He recalls being told he was akin to a leper by a priest who knew he was applying for an annulment. Though he has never sought remarriage, he feels for those who have found themselves kicked out of the communion line because they found love and commitment after going through the harrowing experience of divorce.

“This is why I’m so excited about what Francis is saying,” he said. “He’s saying we need to be more pastoral about these things.”

It’s not a small or rare problem, said Deacon James Shaughnessy, Catholic Family Service of Toronto marriage counsellor. Shaughnessy sees many cases, particularly among people in Rite of Christian Initiation for Adults programs seeking to join the Church. Chinese immigrants married civilly in China with no religious sense or concept of marriage as a sacrament find it difficult to understand why now, after they have discovered life in Christ, they would need to annul a marriage contracted under a materialistic Marxist interpretation that sees marriage as an antiquated institution which will one day wither away.

“It’s a lot of hoops they have to jump through,” Shaughnessy points out.

Increasingly, people just don’t do it.

“A lot of people just ignore the rules now,” he said. “They just think, ‘The Church, the rules, who cares? I’ll just do what I want…’ The devout people would be in serious anguish.” As the Pope did on his flight back from Brazil, Pagé looks to the east for a solution. The Orthodox allow second and even third marriages on the theological principle of economia, which Orthodox theologians translate as the Church acting out of concern for the salvation of its people. Such weddings are celebrated in a less ostentatious, penitential spirit.

In a paper published in Studia Canonica in 2000, Pagé urged a Catholic examination of Orthodox practice.

“The Latin Church was one Church with the Orthodox Church for a longer time than they were separated. And there were two or three fathers of the Church who agreed with that solution,” Pagé said. “I’m in very good company here.”

When he presented his paper to the Canon Law Society of America, Pagé pointed out the danger of ignoring the problem.

“Perhaps canonists have been responsible for delays in providing real solutions to the problem of Catholics who have experienced the collapse of their marriage. Who amongst us has not had the feeling that his or her tribunal has granted one or maybe two divorces?” he asked.

Sometimes it seems like the Church can grant absolution to contrite murderers in the confessional, but has nothing to offer somebody who suffers through a broken marriage, he said.

The worst thing about the current regime is that it holds consciences hostage, telling serious Catholics to stay away from the Eucharist on the presumption of a bad conscience, said Steve.

“We shouldn’t say, ‘You’re not worthy to receive the sacraments,’ as if the sacraments are a reward for good behaviour,” he said. “Here the Pope is talking about these people like they are one of us, like they are still loved by God. And the sacraments are there to help us become better people who are able to go into a deeper relationship with God. They’re there to strengthen us, to give us faith, as opposed to being a gold star for being good people.”

Though he received his annulment six years ago, Steve still nurses psychic wounds from the annulment process.

“I’m hearing this (from Pope Francis) and I’m saying ‘Hallelujah!’ I’m feeling some healing just for that alone,” he said.