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One of the angriest attacks to date against Catholic marriage laws is made by Author Morris L. West (The Devil's Advocate), a divorced and remarried Catholic, and Robert Francis, an Anglican, in their new book, Scandal in the Assembly. The book appears to owe a considerable debt to a scholarly but not widely circulated 1967 work, Divorce and Remarriage, by a U.S. canonist, Monsignor Victor J. Pospishil. But it dwells more extensively on the individual injustices created by the incredibly complex code of canon law on marriage. Indeed, the authors charge that present Roman Catholic marriage laws are "bad laws, derogatory of hu man dignity and based on un-Christian concepts of the human person." Church marriage tribunals, they allege, fail "to dispense either natural justice or Christian charity."
Roman Bias. Most galling to the authors is the Roman legal bias in the laws, which places more regard on the form than on the content of the marriage: on the marriage rite itself, on the intent of the partners at the moment of marriage and on the physical consummation of the union, rather than on any evidence of spiritual growth in what is held up as a spiritual bond. Impotence, for instance—either total or relative to the other partner—invalidates a marriage. So does lack of free consent by one or both parties (as in a "shotgun wedding"), or pre-agreed conditions that in the church's eyes violate the idea of true marriage, such as a refusal to have children. West and Francis argue that the church is wrong in its assumption that any person baptized a Catholic is a practicing Catholic and therefore contracts a valid sacramental marriage. Many nominal Catholics, they argue, have little understanding of the sacramental nature of marriage—and even less intention of patterning their conjugal lives on it.
If the Catholic marriage partners end up in an ecclesiastical court, they come face to face with the ancient Roman concept of jurisprudence—guilty until proven innocent—instead of the Anglo-Saxon juridical concept, which embodies the opposite assumption. However much a petitioner may be convinced that his marriage exists in name only, the marriage bond is presumed to exist unless proved otherwise. The 639-year-old Sacred Roman Rota, the ultimate court of appeals in marriage cases (it annulled only 182 marriages worldwide in 1969), sets the pattern that diocesan and regional tribunals are expected to follow. When in doubt, judges in all matrimonial courts are required to rule in accordance with the ancient church dictum in favorem matrimonii—in favor of the marriage bond. To ensure just that, the Vatican added in the 18th century a "Defender of the Bond" as a figure in every marriage trial, to argue —regardless of the facts of the case —that the marriage be found valid.
With the burden of proof thus on the petitioner, trials have dragged on for years. One virginal wife in Italy, charging that her marriage had never been consummated by her impotent husband, found that her case rested on the intactness of her hymen. Her only recourse, through six years of investigation, has been steadfastly to guard her virginity—and the case still remains undecided.