The ability of Pope Francis to alter the sacramental discipline of the Church in relation to the divorced and remarried is sometimes defended on the basis that, in the details of its application, this discipline has been subject to alteration before Amoris Laetitia.
A valid example which can be given in favour of this argument is Canon 2356 of the 1917 Code of Canon Law, as compared to how Canon 915 of the 1983 Code of Canon Law applied under Pope St. John Paul II. In this regard Canon 2356 of the 1917 Code, which was promulgated at a time when civil remarriage without annulment was understood as bigamy, provided that:
Bigamists, that is, those who, notwithstanding a conjugal bond, attempt to enter another marriage, even a civil one as they say, are by that fact infamous; and if, spurning the admonition of the Ordinary, they stay in the illicit relationship, they are to be excommunicated according to the gravity of the deed or struck with personal interdict.
By contrast, Canon 915 provides that:
Those who have been excommunicated or interdicted after the imposition or declaration of the penalty and others obstinately persevering in manifest grave sin are not to be admitted to holy communion.
That is, while in 1917 the remarried could if proved obstinate by ignoring a warning be excommunicated, in 1983 the law was both:
1. Less strict in penalty, in that excommunication was no longer an applicable, with only the lesser restriction of not being able to receive Holy Communion applying; and
2. More strict in application, in that the Pontifical Council for Legislative Texts 2000 Declaration had ruled that obstinate persistence should mean:
… the existence of an objective situation of sin that endures in time and which the will of the individual member of the faithful does not bring to an end, no other requirements (attitude of defiance, prior warning, etc.) being necessary to establish the fundamental gravity of the situation in the Church.
However in prosecuting this argument some otherwise credible theologians have in their excitement gone too far, and have suggested certain disciplines were novel changes introduced by St. John Paul II, whereas they were in fact longstanding practices accepted by the Church many centuries before Familiaris Consortio.
One example of this is Archbishop Víctor Manuel Fernández, the theologian widely credited with assisting Pope Francis with drafting Chapter VIII of Amoris Laetitia, who in his article Chapter VIII of Amoris Laetitia: What is left after the storm states in relation to the so-called “brother and sister” solution accepted by Familiaris Consortio that:
St. John Paul II’s proposal to the divorced in a new union to live in perfect continence, as a requirement to make access to Eucharistic communion possible, was already an important novelty. Many resisted this step. Still some today do not accept this proposal because they believe it leads to relativism.
However this solution, explained by Familiaris Consortio 84 and the Synod which preceded it as follows, is in fact supported by precedent stretching back to St. Alphonsus Liguori:
Reconciliation in the sacrament of Penance which would open the way to the Eucharist, can only be granted to those who, repenting of having broken the sign of the Covenant and of fidelity to Christ, are sincerely ready to undertake a way of life that is no longer in contradiction to the indissolubility of marriage. This means, in practice, that when, for serious reasons, such as for example the children’s upbringing, a man and a woman cannot satisfy the obligation to separate, they “take on themselves the duty to live in complete continence, that is, by abstinence from the acts proper to married couples.”
A hint of this longer history can be seen in the then Cardinal Ratzinger’s 1991 Correspondence published in the Tablet, in which he asserts that two letters during the 1970s from the Congregation for the Doctrine of the Faith were in fact referring to the “brother and sister” solution, when they spoke of an “approved practice in the internal forum” for divorced and remarried Catholics.
A fuller outline of the true origins of “brother and sister” solution is however provided by James H. Provost, himself writing before Familiaris Consortio, in his 1980 article for the Jurist (Provost, James H. “Intolerable Marriage Situations Revisited” (1980) 40 The Jurist 141).
The full text of this wide-ranging article, the correctness of which in other respects I do not attest to, is available online for those with a paid subscription to the archives of the Jurist. For those without however, it would not seem beyond the bounds of fair use to reproduce the small section dealing with the history of the “brother and sister” solution, and accordingly I do so below (pp. 180 – 183, all emphasis added).
INTOLERABLE MARRIAGE SITUATIONS REVISTED
James H. Provost
… 1. Brother and Sister Arrangement
The most traditional solution to the hardship situation is to require the couple to separate and, if possible, return to the prior spouse. In extreme cases and very rarely, they could be permitted to continue to live together as brother and sister without sexual relations, and to receive the sacraments under certain conditions designed to avoid the danger of scandal.115
The brother-sister arrangement was spoken of by moralists even in St. Alphonsus’ time although the terminology of “brother-sister” appears to have come into official usage somewhat later.116 The then Monsignor John Krol in 1950 presented the first public discussion on this topic in the current concern over persons in hardship situations. In reporting on the formalized procedure adopted in the Cleveland diocese he stressed that brother-sister permissions were granted only as a last resort when separation was not possible, it was necessary for the couple to continue living in a proximate occasion of sin, and there was no danger of scandal.117
Bernard Sullivan’s lengthier study examines several aspects of these conditions.118 (a) There must be no other solution. (b) There must be no actual or virtual danger of scandal. This condition leads Sullivan to distinguish formally and materially public cases from those which are formally public but materially occult, and those which are both formally and materially occult. Usually the couple will be required to move to another locality in the first instance, but under exceptional circumstances they may be permitted to stay where they are. In both of the other cases they need not move. (c) There must be no voluntary proximate occasion of sin. (d) A proportionate reason is needed. (e) Sullivan also requires permission of competent authority but notes that not all cases need be referred to the Ordinary as Krol recommends.
Several observations can be made concerning this arrangement.119 First, as St. Paul (I Cor. 7:5) and the constant teaching of moralists stress, this arrangement should be used with great caution. Paul even recommends not remaining apart for too long a time, something the brother-sister arrangement demands as a necessary precondition.120
Second, it is not clear that this is truly an “internal forum” solution. Krol recommended an external forum procedure although it was administrative rather than judicial. Sullivan would permit either an internal or an external forum approach. It is difficult on this score to agree with commentators on the April 11, 1973 letter of the Congregation who hold the brother-sister arrangement to be the only meaning of the “approved practice in the internal forum.”121
115. Cappello, p. 841; Th. M. Vlaming, Praelectiones luris Matrimonii ad Normam Codicis luris Canonici, ed. L. Bender (Bussum: Paulus Brand, 4th ed. 1950), p. 519; Lefebvre, “Actes recents,” (1974), p. 261.
116. St. Alphonsus, no. 905, pp. 38-39; Response of the Congregation of the Holy Office, March, 8, 1900: Fontes C.I.C. VI: 522-523, no. 1236.
[This reference to the 1900 Holy Office Response (available at https://archive.org/stream/CICF-Gasparri/D-c.i.f.-Vol.4N.714-2055-Gasparri), while not expanded on by James H. Provost, is as the earliest Vatican authority mentioned worth reproducing in full here.
S.C.S. Off., 8 mart. 1900.
Bertha catholica archidioeceseos N. soluta, cum Titio acatholico pariter soluto, ex quinque circiter annis in concubinatu fide praestita et cum affectu maritali vivens, novissime, nempe die I mensis Septembris anni 1898, cum eo matrimonium, quod vocant civile, coram magistratu civili iniit. Ex ista coniunctione duae proles exortae sunt, quarum altera die 29 m. Septembris 1894 nata catholice et baptizata est et educate, altera, die 29 m. Martii 1896 nata, paucis hebdomadibus post nativitatem decessit.
Parocho dictae Berthae vehementer allaborante ut ad validum et licitum matrimonium adducatur, tandem res in eo est ut dispensationi super religionis mixtae impedimentum, praemissis debitis cautionibus, iam locus per se esse posset, nisi impedimentum perpetuae impotentiae intercessisset, ex eo proveniens, quod dictus Titius mense Iunio 1896 (ie. duobus annis ante celebrationem matrimonii civilis) operatione chirurgica utroque teste privatus existit. Restare solum videtur, ut ad dispensationem in radice coniunctionis petendam confugiatur. Revera intentio, seu consensus matrimonialis non defuit, nec saltem post contractum civile matrimonium extrinseca species matrimonii deest, adeo ut dictae partes pro coniugibus communiter habeantur. Cum per sanationem saluti animae resipiscentis et legitimitati prolis superstitis provideatur, denegata vero sanatione separatio minime fieri posset et gravissima scandala pertimescenda forent; ideo preces mulieris catholicae pro obtinenda gratia enixe commendamus.
R. In casu exposito sanationem in radice concedi non posse; et ad mentem: Mens est, quod cum matrimonium revalidari nequeat, putati coniuges illico separari deberent. Si vero hoc moraliter impossibile sit, dummodo absit periculum incontinentiae, adhibitis cautelis, sub eodem tecto cohabitent uti frater et soror. Quod vero ad canonicam prolis legitimationem, eam per rescriptum Principis rite expediendum concedi posse. – SSmus adprobavit.
[Collectanea S. C. de Prop. Fide. vol. II, n. 2078. – Cf. etiam Acta S. Sedis, vol. XXXII, p. 639, 640].”
In English the response of the Holy Office here was, to put it briefly, that as radical sanation could not be granted in this case, the parties should be separated. However if separation was morally impossible, and after taking due precautions there was no danger whatsoever of incontinence, the parties could live together under the same roof as “brother and sister” (frater et soror).]
117. John Krol, “Permission to Parties Invalidly Married to Live as Brother and Sister,” THE JURIST 11 (1951): 7-32. The article is based on a talk to the 12th annual meeting of the C.L.S.A.
118. Bernard O. Sullivan, Legislation and Requirements for Permissible Cohabitation in Invalid Marriages. Canon Law Studies, 356 (Washington, D.C.: Catholic University Press, 1954), especially pp. 81-136.
119. Ryan provides a perceptive critique, p. 531-534. [Semus Ryan, “Survey of Periodicals: Indissolubility of Marriage,” The Furrow 24 (1973)]
120. Sullivan, pp. 117-124, lists the various reasons given by moralists for permitting the arrangement. The couple must be willing to forego voluntary occasions of sin and the presumption seems to be they are prepared to renounce sexual relations for the rest of their lives together.
121. Lefebvre, “Actes recents,” (1974), p. 261, identifies the brother-sister arrangement as the only acceptable meaning of internal forum practice. Navarrete, “Conflictus” pp. 340-345, while not using the “brother-sister” terminology, describes this type of relationship as the only acceptable one for hardship situations or cases where the doubt about validity cannot be resolved to put the couple in the conflict situation. See Krol, pp. 19-22; Sullivan, pp. 126-136.