Writing in the summer issue of the influential American canon law journal The Jurist, Msgr. Roch Pagé suggests “granting a consat of divorce,” similar to that found in some Orthodox Churches, to Catholic couples whose marriages fail. In Eastern Orthodoxy, if Church authorities are satisfied that all reasonable efforts to salvage a marriage were made, and that the divorced are truly repentant, they are readmitted to the sacraments and allowed a second, non-sacramental union.

This approach recognizes divorce as opposed to the Catholic Church position that marriage is indissoluble. As long as the Church refuses to recognize the reality of divorce, canon law judges will be stuck trying to find legal answers to a problem that is fundamentally theological, Pagé told The Catholic Register.

“If this is what the Catholic Church wishes, why not determine it directly and call it by its real name?” asks Pagé.

“(We’re) doing the most we can to find a juridical solution to a theological problem. The theological problem is certainly the indissolubility of marriage. And more and more important, to what extent does the Church apply its capacity to forgive a mistake?”

If a youthful couple make a promise they can’t live up to, rather than try to find legal grounds to say they were never married and grant an annulment, the Church should recognize the couple failed, forgive them and find a way for them to carry on their lives as Catholics, said the professor of canon law at Ottawa’s Saint Paul University and at Catholic University of America.

“They failed. They recognize their failure, their sin. Why would we not forgive them?” Pagé asked. “This is my deep opinion.”

Pagé points out that there are no other sins the Church refuses to forgive.

“Why don’t we forgive such a mistake? Since we forgive so many other much graver mistakes — like murder?” he asks.

As long as the Church fails to recognize the reality of divorce it will find itself ministering to Catholics who refuse to recognize Church judgments on the validity of marriage, said Pagé.

“Some, if not most, of them (divorced and remarried Catholics) have already solved their problem with regard to morals and canon law,” he said. “They divorce. They remarry. If they go to the funeral of their new mother-in-law they will go to communion.”

But Pagé can expect stiff opposition. Eleven cardinals, at least four of whom will participate in October’s Synod of Bishops, have written a book that urges the Church to maintain its current rules regarding marriage. The book of essays, titled Eleven Cardinals Speak on Marriage and the Family, has contributions from cardinals from Europe, Asia, South America and Africa. It urges extreme caution in considering any plan to allow communion for Catholics who have divorced and remarried civilly without an annulment.

Dutch Cardinal Willem Jacobus Eijk of Utrecht, who was elected to the Synod, said it is neither pastoral nor merciful for the Church’s ministers to pretend that without an annulment a civil remarriage is anything other than “a form of structured and institutionalized adultery.”

But one change in Church practice absolutely must occur, he said. After decades of weak catechesis, “true pastoral ministry” means presenting Church teaching, “transmitting and explaining its foundations more adequately and clearly than we have done in the last half century.”

Italian Cardinal Carlo Caffarra of Bologna, who was not elected to attend the Synod, said showing mercy to civilly remarried couples without requiring their conversion — demonstrated by at minimum refraining from sexual relations with a new spouse — “is the mistaken pity of an incompetent and/or weak physician who contents himself with bandaging wounds without treating them.”

Venezuelan Cardinal Jorge Urosa Savino wrote that many societies no longer understand marriage the way the Church does, but that does not mean the Church should “yield.”

“The truth does not depend on acceptance by a majority. Neither does pastoral practice,” he wrote.

Canadian Conference of Catholic Bishops President Archbishop Paul-André Durocher has discussed Pagé’s paper with his old professor of canon law and appreciates how clearly Pagé states the problem.

“On the one hand there is compassion for people whose marriages break apart,” Durocher said. “On the other hand, there’s the very clear teaching of Jesus that there will be no divorce among you (Matt. 19:3-12). So, how do you reconcile that teaching, a very clear teaching of Jesus, with the compassion that we all feel for people whose marriages have broken apart and would like to somehow rebuild their lives while continuing in the Church?”

Pagé’s opinions carry weight, but Durocher is waiting until the Synod before making up his mind. He will be one of four Canadian bishops at the Synod, along with Cardinal Thomas Collins of Toronto, Vancouver’s Archbishop Michael Miller and Valleyfield, Que., Bishop Noel Simard.

Durocher also warns that annulments, divorce and remarriage will not be the only subjects at the Synod. How poor families cope in the economy, evangelizing the culture about Christian marriage and promoting the value of marriage to people who have lost hope in the possibility of a permanent and spiritual bond will be among the problems set before bishops from around the world.

While Catholics continue to divorce at rates more or less equal to the general population, fewer and fewer bother to seek an annulment. As judicial vicar of the Canadian Appeal Tribunal in Ottawa, Pagé sees every single Canadian annulment case come through his office for the original judgment to be either confirmed or revised. This year the Canadian Appeal Tribunal expects to see just 800 cases for the entire country.

“The number of cases decreases year after year,” said Pagé. “We should have a reflection on this phenomenon.”

Pagé opposes any easy solutions to speeding up the annulment process. Quick oral hearings rather than the full, documentary process and doing away with the higher court review of all annulments could lead to errors in rulings and other serious problems, he said.

In Pagé’s view, the problem with getting annulments through the process in a timely way has to do with too few canonists working for Canada’s marriage tribunals. Many dioceses can’t spare priests from the frontlines to go study canon law. And many priest-canonists also have pastoral duties.

Lack of qualified judges is a problem in most Canadian dioceses, but Pagé’s criticism doesn’t really apply in Toronto, said Fr. Alex Laschuk, Toronto Regional Marriage Tribunal associate judicial vicar.

“I think a lot of dioceses are struggling to keep up with the workload,” Laschuk said.

Part of the problem is that on any tribunal, the code of canon law requires that priests outnumber lay judges. Pagé wants to see that requirement dropped so that more lay people can be assigned full time to tribunals while the priests are left to pastor parishes.

“It’s my point that a lay woman or man, qualified in canon law with a licence, masters or doctorate… Are they not judges? They are judges as much as I am,” said Pagé.

But on clerics outvoting lay people, canon law again rubs up against theology, said Laschuk.

“The Church has the understanding of what’s called the power of orders and the idea that jurisdiction is tied to the power of orders. That’s really a question for the theologians to resolve.”

However, in some dioceses permanent deacons with qualifications in canon law are already being counted as clerical members of marriage tribunals. While deacons are ordained, they do not share in the governing function of the Church hierarchy. Lay votes on a marriage tribunal should count just as much as deacon votes, said Laschuk.

(With files from Catholic News Service.)