It’s Time We Stopped Judging the Divorced & Remarried


As a small part of the world is vaguely aware, the Catholic Church is preparing for a “synod” (a fancy term for a meeting of bishops), amorphously called the “Synod on Synodality.” Since the publication in June of Instrumentum Laboris, the working document for the first session of the synod coming this October, the perennial grumbling within the Catholic commentariat has reached a fever pitch. American Peter Herbeck of Renewal Ministries tells his 75,000 followers in a recent YouTube broadcast that “leaders within the Church are promoting a false gospel that leads to death.”[1] In the UK, Dr. Gavin Ashenden of The Catholic Herald warns that the Synod on Synodality forebodes a takeover of the Church by the forces of neo-Marxism.[2] Damian Thompson of The Spectator tells his listeners that “an earthquake has hit the Catholic Church.”[3]

The part of Instrumentum Laboris that has everyone in such a lather appears on page 30, listed as a “Question for Discernment,” where the bishops ask, “what concrete steps are needed to welcome those who feel excluded from the Church because of their status or sexuality (for example, remarried divorcees, people in polygamous marriages, LGBTQ+ people, etc.)?”[4]

While it seems unlikely that the synod will bless same-sex unions, the animus of many critics remains undiminished for the comparatively humdrum possibility that divorced Catholics who have remarried without a declaration of nullity may be welcomed back into full communion.

Fr. Joseph Morgan, CPM, a parish priest in Kentucky, recently uploaded to YouTube a homily that has at this writing received over 216,000 views, uncharitably entitled “Fake Catholics.” In it he describes the divorced and remarried who have failed to seek annulments as tares among the wheat, destined to be cast into the fires of hell. For this insufficiency, he conflates them with those who support abortion, homosexual marriage and euthanasia, who “appear to be Catholic, pretend to be Catholic, but are not Catholic at all.”[5] 

Why do some clergy and commentators look with such disdain on the prospect of a divorced and remarried parishioner standing in line for communion? One might suppose it comes from the gospel in which Jesus teaches that a man who divorces his wife and marries another commits adultery. (Matt. 5:31-32). Were that the last word on the matter, we might all certainly agree. But Christ also told his disciples that even the man who looks lustfully at a woman commits adultery with her in his heart (Matt. 5:28)—something that, at some point in most men’s lives, is as unavoidable as sneezing. To this we must add the further complication that polygamy was accepted in the Old Testament and remained so for first-century Jews and Christians, yet nowhere in the gospels do we hear Christ singling out the man who sleeps with more than one wife, without divorcing any of them, for eternal damnation. What, then, is Christ trying to tell us? That none shall be saved? So wondered his disciples, who asked how anyone could hope to see heaven if this were truly the standard. (Matt. 19:10). As to this, Christ answers, “With man this is impossible, but with God all things are possible.” (Matt. 19:26). For this reason, most of us understand Christ not to be handing out merit badges to the undivorced but impressing upon all of us that we are totally dependent on God’s mercy.

Another talking point of critics is St. Paul’s admonition to the Corinthians against receiving the Eucharist “unworthily.” (1 Cor. 11:27). According to this view, Paul is warning us that anyone who receives communion without having been absolved by a priest of any serious sin during confession “eats and drinks judgment on himself.” (1 Cor. 11:29). But Paul was writing in the first century to Christians who were showing up to communion so ravenous that they would devour the Eucharist as mere bodily nourishment without waiting for others: “Therefore, my brothers, when you come together to eat, wait for one another. If anyone is hungry, he should eat at home, so that your meetings may not result in judgment.” (1 Cor.11:33-34). St. Paul did not tell the Corinthians that only those in a “state of grace” receive communion worthily. Confession to a priest did not become obligatory in the Church until the Fourth Lateran Council in 1215 A.D.[6]

There are some traditional Catholics who insist that any remarriage after divorce is a mortal sin, but here they depart from centuries of Church teaching. The Church has long recognized the need for mercy in matters of marriage and divorce. It considers those who marry without the requisite seriousness or understanding of what they are undertaking to be unmarried in the eyes of heaven, even though Christ never gave us earthly criteria for determining “what God hath joined together.” (Matt. 19:6). For centuries, an annulment proceeding has served as the rather clumsy device banged together by the Church on earth to ascertain this divine reality. And for centuries, people have balked at the idea of being summoned like errant schoolchildren before a tribunal of strangers to defend their decision to divorce. The Church of England owes its entire history and existence to this reluctance.

In 2016, Pope Francis issued the apostolic exhortation, Amoris Laetitia (“The Joy of Love”), in which he laid the groundwork for a formal change in Church teaching on access to the sacraments for the un-annulled:

The Church possesses a solid body of reflection concerning mitigating factors and situations. Hence it can no longer simply be said that all those in any “irregular” situation are living in a state of mortal sin and are deprived of sanctifying grace. More is involved here than mere ignorance of the rule. A subject may know full well the rule, yet have great difficulty in understanding “its inherent values”, or be in a concrete situation which does not allow him or her to act differently and decide otherwise without further sin.

. . . .

For this reason, a pastor cannot feel that it is enough simply to apply moral laws to those living in “irregular” situations, as if they were stones to throw at people’s lives. This would bespeak the closed heart of one used to hiding behind the Church’s teachings, “sitting on the chair of Moses and judging at times with superiority and superficiality difficult cases and wounded families”. Because of forms of conditioning and mitigating factors, it is possible that in an objective situation of sin – which may not be subjectively culpable, or fully such – a person can be living in God’s grace, can love and can also grow in the life of grace and charity, while receiving the Church’s help to this end.”

It is at this point in the text, in referring to what “help” the Church should offer, where Francis inserted the now-infamous footnote no. 351[7], stating:

In certain cases, this can include the help of the sacraments. Hence, “I want to remind priests that the confessional must not be a torture chamber, but rather an encounter with the Lord’s mercy” (Apostolic Exhortation Evangelii Gaudium [24 November 2013], 44: AAS 105 [2013], 1038). I would also point out that the Eucharist “is not a prize for the perfect, but a powerful medicine and nourishment for the weak” (ibid., 47: 1039). [8]

The newly released Instrumentum Laboris harnesses the momentum begun by Pope Francis and specifically references Amoris Laetitia. This has enraged some who imagine that, after the synod concludes, divorced and remarried Catholics who have not obtained annulments might be welcomed by their pastors to return to mass, seek forgiveness, and receive communion.

O, the horror!

What, then, can we say of the need for annulments? On this point there seems to be a great deal of misunderstanding. First, we must remember that annulment is a process in service of a doctrine, not a doctrine in itself. Like all procedures, it can be streamlined, amended or supplanted entirely without doing injury to the doctrine it serves, which is the inviolability of sacramental marriage.

From the website comes this misconception: “The only way to end a marriage is with a Catholic annulment . . .” On the contrary, an annulment is powerless to “end a marriage.” So says the Catechism of the Church in paragraph 1640: “[T]he marriage bond has been established by God himself in such a way that a marriage concluded and consummated between baptized persons can never be dissolved. This bond, which results from the free human act of the spouses and their consummation of the marriage, is a reality, henceforth irrevocable, and gives rise to a covenant guaranteed by God’s fidelity. The Church does not have the power to contravene this disposition of divine wisdom.”  (Emphases added.)

If a valid marriage took place, the catechism teaches that “the Church does not have the power” to invalidate it. This is one door that the keys given to St. Peter cannot unlock. Conversely, if God has not joined two people together, their failure to seek an annulment cannot force God’s hand. An annulment, therefore, is no more than an advisory opinion that a marriage never existed in the eyes of God.

That the Catholic Church does not have infallible power to declare two people to be married if they were not, or unmarried if they were, is obvious from the fact that annulments exist at all. Every annulment of a Catholic marriage contradicts a priest’s solemn liturgical declaration at some point in the past that two people were “man and wife.” The priest spoke the words here on earth, but without a clear understanding and sincere intention in the hearts of two lovers, the words had no effect in heaven. What, then, is the basis for confidence in the declaration of annulment? Why does the Church feel compelled to declare something about the intentions of two hearts that it got wrong the first time, and even now cannot possibly know, through a process it does not do especially well, and with no greater assurance in the end that it has done so correctly?

The Pew Research Center determined in 2015 that fully 25 percent of all Catholics in the United States are divorced, and that most of those who have remarried have done so without the benefit of annulment.[9] Many of them still attend mass, despite having to endure the kind of shaming handed out by priests like Fr. Morgan and the sanctimony of some “faithful” Catholics who ostracize them. Yet the first thing these people will encounter, should they inquire at their diocese about annulment, is a long list of documents and information that will be demanded of them, including the names of “witnesses” who presumably can tell the tribunal something about the most intimate understanding in the hearts of two people ten, twenty or forty years ago. The ordeal that awaits them is vaguely reminiscent of the plight of Dorothy, ordered to fetch the broom of the Wicked Witch of the East before the wizard will see her. Can you imagine, after enduring the pain and humiliation of separation and divorce, having to contact people you might not have seen or spoken to in decades to ask them to tell a bishop they don’t know whether or not you were “really” married all those years ago? The effect, if not the whole idea, is to make the process so horrific that people will choose not to bother the wizard in the first place.

The unspoken irony lurking beneath all of this is that in the case of every successful application for annulment, the Church is exposed as having been content for some number of years to live in full communion with two people claiming to be married in the eyes of heaven who were not. People soldiering on and sleeping together in non-sacramental marriages, often for decades, are not condemned but celebrated by the Church and held up as a model for others. On this point, however, the Church is quite without blame.

It is not for the Church to tell these people whether they have a truly sacramental marriage. That is left to their consciences, and so it should be with the divorced and remarried.

Annulments have become largely perfunctory and embarrassing, hoop-jumping exercises that are beneath the dignity of everyone involved, which perhaps explains why they are granted more than 90 percent of the time. Although the Church might wish to preserve the requirement of even a sham proceeding as a deterrent to divorce, it accomplishes that deterrence by laying heavy burdens on the backs of those whose marriages have already failed and denying them the bread of heaven. This is unmerciful, unkind, and unnecessary. It is high time for it to end.


Michael Hurley is an American Catholic, husband, father, and Jesuit-trained trial-attorney who spent 31 years in private practice. He is a third-degree member of the Knights of Columbus and has served parishes in North Carolina and Texas as parish council chairman, CCD instructor, and youth-group director. He is the author of seven books and numerous articles. His writing has appeared in The Wall Street Journal, The Washington Times, The Raleigh News & Observer, The Conservative Woman, The Daily Skeptic, and The American Thinker. He has previously written on divorce and remarriage in the Catholic Church in his memoir, Once Upon A Gypsy Moon (Hachette Book Group, 2013).

[1] Herbeck, P. (2023, June 28). “Trapped in a Dying Culture,” Renewal Ministries.

[2] Ashenden, G. (2023, July 14). “The Planned Synodal Takeover of the Catholic Church—Examining Instrumentum Labororis.Ashenden Scripted.

[3] Thompson, D. (2023, July 25). “Is 2023 Pope Francis’s ‘Year Zero’?” The Spectator.

[4] Instrumentum Laboris for the First Session, October 2023.(20 June 2023). XVI Ordinary General Assembly of the Synod of Bishops, p. 30.

[5] Morgan, Fr. Joseph, CPM. (25 July 2023). “Fake Catholics,” Fathers of Mercy, YouTube.

[6] Fourth Lateran Council, 1215 A.D., Section 21: “All the faithful of either sex, after they have reached the age of discernment, should individually confess all their sins in a faithful manner to their own priest at least once a year . . . Otherwise they shall be barred from entering a church during their lifetime and shall be denied a Christian burial at death.”

[7] Aglialoro, Todd. (16 January 2017). “The Footnote that Roared.” Catholic Answers.

[8] Amoris Laetitia. (19 March 2016). The Vatican. “Mitigating Factors in Pastoral Discernment,” pp. 232-237.

[9] Lipka, Michael. (26 October 2015). “Most U.S. Catholics Hope for Change in Church Rule on Divorce, Communion,” Pew Research Center.