In a work of private theology, Joseph Ratzinger (1972) — who became Pope Benedict XVI — opined that the divorced and remarried should be admitted to Communion, in some cases, despite living with their second partner while the first valid marriage remains in force. This is essentially the same as the position of Pope Francis, a position widely condemned by the papal accusers.

Joseph Ratzinger: On the Question of the Indissolubility of Marriage (Originally published in German: “Zur Frage nach der Unauflöslichkeit der Ehe: Bemerkungen zum dogmengeschichtlichen Befund und zu seiner gegenwärtigen Bedeutung” in Ehe und Ehescheidung: Diskussion unter Christen, Kösel-Verlag, München, 1972, pp. 35-56. Translated by Joseph Bolin, March 25, 2011)

Excerpt from Ratzinger:

“2. The Church is the Church of the New Covenant, but it lives in a world in which the “hardness of heart” (Mat 19:8) of the Old Covenant remains unchanged. It cannot stop preaching the faith of the New Covenant, but it must often enough begin its concrete life a bit below the threshold of the scriptural word. Thus it can in clear emergency situations allow limited exceptions in order to avoid worse things. Criteria of such action must be: an act “against what is written,” is limited in that it may not call into question the fundamental form, the form from which the Church lives. It is therefore bound to the character of exemption and of help in urgent need – as the transitional missionary situation was, but also the real emergency situation of the Church union.

“Thereby arises, however, the practical question, whether we can name such an emergency situation in the present-day church and describe an exception that satisfies these criteria. I would like to try, with all necessary caution, to formulate a concrete proposal that seems to me to lie within this scope. Where a first marriage broke up a long time ago and in a mutually irreparable way, and where, conversely, a marriage consequently entered into has proven itself over a longer period as a moral reality and has been filled with the spirit of the faith, especially in the education of the children (so that the destruction of this second marriage would destroy a moral greatness and cause moral harm), the possibility should be granted, in a non-judicial way, based on the testimony of the pastor and church members, for the admission to Communion of those in live in such a second marriage. Such an arrangement seems to me to be for two reasons in accord with the tradition:

“a) We must emphatically recall the room for discretion that is built into every annulment process. This discretion and the inequities that inevitably come from the educational situation of the affected parties and from their financial possibilities should warn against the idea that justice can in this way be flawlessly satisfied. Moreover, many things are simply not subject to legal judgment and are nonetheless real. The procedural affair must necessarily limit itself to the legally provable, but can for that very reason pass over crucial facts. Above all, formal criteria (formal errors or conscious omission of ecclesiastical form) thereby receive a preponderance that leads to injustices. Overall, the transferal of the question to the act establishing the marriage is indeed legally unavoidable, but still a narrowing of the problem that cannot fully do justice to the nature of human action. The annulment process provides a concrete set of criteria to determine that the standards of marriage among believers are not applicable to a particular marriage. But it does not exhaust the problem and therefore cannot claim that strict exclusivity that had to be attributed to it under the reign of a certain form of thought.

“b) The requirement that a second marriage have proven itself over a long time as a moral greatness and have been lived in the spirit of faith in fact corresponds to that type of forbearance that is palpable in Basil, where after a long penance Communion is granted to the “Digamus” (= the one living in a second marriage) without terminating the second marriage: in trust in in the mercy of God, who does not leave the penance unanswered. If in the second marriage moral obligations to the children, to the family, and so also to the woman have arisen, and no similar commitments from the first marriage exist, and if thus for moral reasons the abandonment of the second marriage is inadmissible, and on the other hand practically speaking abstinence presents no real possibility (magnorum est, says Gregory II), the opening up of community in Communion after a period of probation appears to be no less than just and to be fully in line with the Church’s tradition: The granting of communio cannot here depend on an act that is either immoral or practically speaking impossible.

“The distinction attempted with the mutual relatedness of thesis 1 and 2 seems to be in accordance with the caution of Trent, although as a practical rule it goes beyond it: the anathema against a teaching that wants to make the Church’s fundamental form an error or at least a custom that should be overcome, remains in full vigor. Marriage is a sacramentum, it stands in the irrevocable fundamental form of the decisive decision. But this does not mean that the Communion community of the church does not also encompass those people who accept this teaching and this life principle, but are in a special predicament, in which they especially need the full communion with the Body of Christ. The Church’s faith will also thus remain a sign of contradiction: That is essential to it, and precisely by this fact it knows that it is following the Lord, who foretold to his disciples that they should not expect to be above the master, who was rejected by the pious and by the liberals, by Jews and by Gentiles.”