Marriage is one of the seven Sacraments of the Church. Marriage, natural marriage, was instituted by God when He created Adam and Eve. Christ elevated marriage among Christians to a sacrament.
An annulment is a declaration that a marriage never existed. This is different than a divorce, which, apart from three exceptions, is not possible for Catholics.
The Church teaches: “A ratified and consummated valid marriage can be dissolved by no human power and for no cause, outside of death.” (Canon 1118 of the 1917 Code of Canon Law)
There are two exceptions: the Privilegium Paulinum and the Privilegium Petrinum. The first one goes back to Paul’s First Letter to the Corinthians: “If any woman has a husband who is an unbeliever, and he consents to live with her, she should not divorce him. […] But if the unbelieving partner desires to separate, let it be so; in such a case the brother or sister is not bound. For God has called us to peace.” (1Cor 7:13.15) In other words, if two non-baptized persons are married and one of them becomes a Christian, and the unbelieving partner desires to separate, the marriage can be dissolved under certain circumstances.
The Privilegium Petrinum means that the non-sacramental marriage of two people, of whom at least one is not baptised, can be dissolved in favor of the faith by the Pope, under certain circumstances.
Non-consummated valid marriages (ratum sed non consummatum) can be dissolved by the Pope.
In the this article, I am trying to give a short overview of marriage annulments and very serious issues that have arisen with them since the Second Vatican Council.
The 1917 Code of Canon Law
In order to understand the problems with many of the marriage annulments in recent decades, we have to take a look at how the Church handled annulments before the Council. The Code of Canon Law valid before the Council was enacted by Pope Benedict XV in 1917 as the official law book for the Roman Rite of the Catholic Church. The code declares:
“Marriage enjoys the favor of law; therefore in doubt the validity of marriage is to be upheld until the contrary is proved, with due regard for the prescription of Canon 1127.” (Can. 1014)
In other words, the burden of proof is on the person petitioning for the annulment.
Canon 1082 of the 1917 Code of Canon Law is a crucial point, describing the minimum necessary to contract a valid marriage:
Ҥ 1. In order that matrimonial consent be considered [valid], it is necessary that the contractants at least not be ignorant that marriage is a permanent society between a man and woman for the procreation of children.
§ 2. This ignorance is not presumed after puberty.”
There are various reasons for invalidity, which are explained in the following canons: error about who the other person is (1083.1); error about some quality of the other person (1083.2); willful exclusion of an essential property of marriage (1086.2); grave and unjust force or fear (1087).
In order for a marriage to be valid, there are also requirements of form which have to be observed: the marriage has to be contracted before the local pastor of one of the parties, or their bishop, or by a priest who was delegated by either one of them and two witnesses (can. 1094). These requirements for validity only apply to Catholics.
There are other impediments, from which the persons contracting marriage can be dispensed from: a simple vow of chastity (can. 1058); a mixed marriage between a Catholic and a heretic/schismatic (can. 1060).
I have skipped over some canons, but I have listed the important ones.
In other words, a marriage can only be annulled if there is proof that it is invalid. If there is doubt, the marriage is valid.
The 1983 Code of Canon Law
In 1983, “John Paul II” instituted a new Code of Canon Law for the Roman Rite. Many of the canons in it about marriage are similar to the old Code, including the two canons quoted above, but there is one crucial canon, which has been used as a loophole to annul hundreds of thousands of marriages.
“Can. 1095 The following are incapable of contracting marriage:
1/ those who lack the sufficient use of reason;
2/ those who suffer from a grave defect of discretion of judgment concerning the essential matrimonial rights and duties mutually to be handed over and accepted;
3/ those who are not able to assume the essential obligations of marriage for causes of a psychic nature.”
The first sentence is not controversial at all. It excludes children, people who are drunk or under the influence of drugs at the time of the wedding and severely mentally ill people. The other two points are seriously problematic.
Geoffrey Robinson, an Australian priest and canon lawyer, who was designated auxiliary bishop of Sydney in 1984, wrote a book the same year with the title “Marriage Divorce & Nullity A Guide to the Annulment Process in the Catholic Church”.
In the book, he describes “lack of canonical discretion”, as described in the Canon 1095.2 quoted above, as follows: “This is the first of the two major new developments that have taken place in this field in our century. It came as a result of the better understanding of the workings of the human mind that has been gained by modem psychology. It is based on the fact that marriage is serious, with very real, lifelong responsibilities and obligations and that, as a result, there must be some minimum proportion between the consent given and the reality of what is being consented to. Every married couple will freely admit that there is always a gap, and in fact a large gap, between what they knew on their wedding day and the reality of what they were consenting to, but invalidity occurs only when this gap assumes gross proportions. […] Different things can go wrong in a person’s background and upbringing to such an extent that he or she is quite incapable of making any realistic evaluation of the marriage that is being entered. Serious anxieties or obsessions, total absorption in one’s own seemingly overwhelming problems — causes such as these can lead to what is called a lack of due discretion.” (p. 84)
Regarding the third point, he writes: “It refers to those people who are simply unfit subjects for marriage, who were never meant for marriage, who cannot possibly live that lifestyle, people of whom even their relatives and friends would say, ‘He/she should never have married.’ It is based on the principle that no one can bind himself/herself to the impossible, no one can give another person a right to the impossible. It can also apply when in a particular marriage there is such a clash of deep-seated needs that the harder the couple try to build a marriage, the worse it will become.” (p. 84-85)
In other words, Robinson admits that these two points are completely new.
Statistics
In 2007, there were 58,322 declarations of nullity in the world, of these 35,009 came from the United States. (link)
Outside the US, there was an approval rate of 89.8% for all annulment petitions, while in the US, it was 96%. Withdrawn petitions or petitions where deadlines are missed don’t count towards this figure.
Before the Second Vatican Council, the picture was very different. I was not able to find exact world-wide numbers. However, there were 338 annulments in the United States in 1968, which means that a thousand annulments world-wide in a year is a reasonable estimate for the time immediately after the Council, and even less before.
By 1974, the number of annulments in the United States rose to 28,918, and it was 63,933 in 1991. “By 2004 the number had fallen to 46,330”. (source)
Obviously, annulments are not infallible decisions. It is possible that valid marriages are declared null and vice versa. Nevertheless, the sheer amount of annulments that have been handed out in recent decades show that the officials of the church of the Second Vatican Council treats marriage with contempt.
The tribunal process
The currently used tribunal process was instituted after the new “Code of Canon Law” was introduced in 1983.
To have a marriage annulled, the petitioner must file a petition with the court with jurisdiction over the spouse. The court then informs the other spouse and asks questions from both parties. Both parties can name witnesses.
The court assigns an advocate to each party, although they can choose another one if they wish. There is also a defender of the bond, whose duty is to argue for the validity of the marriage.
The diocesan court is the first instance court. Until 2015, there were usually three judges on the tribunal, with a priest presiding. The judges should have degrees in canon law.
There are second instance courts serving multiple dioceses. An appeal was automatic before 2015, after that it was optional.
After the second instance tribunal, the next highest court is the Roman Rota. The sentence of the Rota can be appealed to the highest court of the Holy See, the Apostolic Signatura or to the Pope himself, but this happens very rarely.
Experiences of respondents at the tribunals
Catholic sociologist Robert H. Vasoli, author of the 1998 book “What God has joined together – The annulment crisis in the Catholic Church”, notes the experiences of tribunal respondents in the United States. The picture he paints is horrifying, although he is careful to stress that this mostly applies to the United States and other courts, like the Rota, handle the cases better.
If someone wants to annul his marriage, the tribunal is very helpful in looking for reasons to annul the marriage.
In many cases, if the respondent wants to contest the annulment, he is not informed of his rights adequately. He is not informed that he can appeal to the Rota, or that he has a right to choose a different advocate than the one appointed by the court.
There even were a few cases where an annulment has been granted without even contacting the other party.
The issue of annulments came into the public consciousness in the United States when Sheila R. Kennedy, the wife of American senator Joseph P. Kennedy II, wrote a book in 1997 with the title “Shattered Faith: A Woman’s Struggle to Stop the Catholic Church from Annulling Her Marriage”.
A perspective from an American lawyer
In 1983, the American lawyer Joseph Zwack published a book with the cynical title “Annulment Your Chance to Remarry Within the Catholic Church”. At the beginning of his book, he quotes a tribunal judge as saying: “There is no marriage which, given a little time for investigation, we cannot declare invalid.” (p. 6-7)
The author writes how the new “Code of Canon Law” expands the reasons for nullity and how the new Code codified the psychological annulment grounds that American tribunals used since the 1970s.
In his book, Zwack answers why “lack of due discretion” and “lack of due competence” are the most popular reasons for annulment today. First he mentions that they are new: “There is a very brief legal history of the use of lack of due discretion and lack of due competence, and all the precedent available comes from post-1970, which is very progressive in its interpretation.” (p. 46)
He asks in his book the question:
“Are There Really Likely to Be Grounds for Church Annulment in the Average Divorce Case?
Yes, according to the experts. Msgr. Kelleher, who has for many years been an active advocate of improving the annulment process, says that some Tribunals seem to be operating on the premise that every broken marriage can be annulled. And Fr. Doherty quotes a Tribunal official speaking about broken marriages as saying, ‘There is no marriage which, given a little time for investigation, we cannot declare invalid.’* This may be a slight overstatement, but it points out that given the prevailing attitude in many marriage Tribunals, almost anyone who is divorced is likely to be judged as having sufficient grounds to petition successfully for an annulment. Fr. Diacetis, President of the influential Canon Law Society of America, feels that ‘more than three million divorced Catholics in the United States have a good case for annulment.’** I think that even this estimate is perhaps conservative.” (p. 6-7)
Then, he says that they are easier to prove: “With Tribunals now able to accept conduct after the ceremony as a strong indication of the psychological state of the partners at the time of the ceremony, one of the major stumbling blocks to an annulment is gone. Similarly, a wide array of evidence of behavioral patterns and examples of instability can now be brought into the case. Although no one of these alone could constitute evidence of invalidity, when collected and analyzed by a psychological expert they may well show the presence of a psychological state that would invalidate the marriage vows.” (p. 46)
“If an expert says that one of the parties was incapable of making or keeping a marriage vow, the Tribunal is unlikely to question his or her opinion. That opinion, when received as evidence in the annulment case, becomes nearly unchallengable proof of an invalid union.” (p. 47)
Developments since “Francis”
In the decades since Professor Vasoli wrote his book, things have substantially worsened. In 2015, “Francis” issued two motu proprios: “Mitis Iudex Dominus Iesus” (“Lord Jesus, the Merciful Judge”) and “Mitis et Misericors Iesus” (“Meek and merciful Jesus”). These two documents simplified the annulment process, one of them writing the changes in the Code of Canon Law and the other in the Code of the Eastern Churches.
The changes in summary:
- all annulment processes are to be free (the diocese should carry the costs)
- a single judge is enough
- the bishop can be the single judge
- there is no automatic appeal to the second instance
They also invented new reasons for annulment: “a brief conjugal cohabitation” and “an abortion procured to avoid procreation”.
According to various Catholic media outlets, these rules had led to an increase in annulment petitions.
Conclusion
Vasoli remarks regarding the fact that American tribunals declare marriages invalid so often: “The machinations of American tribunals have placed valid Christian marriage on an almost Olympian pedestal. Inordinate idealization of Christian marriage is an all-but-inevitable consequence of the evolving criteria for matrimonial consent. The average married couple would be surprised to learn that the vows they exchanged did not have to be taken literally. Special grace would be needed to achieve a ‘communion of life’ impervious to tribunal executioners.” (p. 74)
Although Vasoli and others lay the blame on the United States, it is clear that none of this would have been going on without the knowledge of “John Paul II” and his successors.
It has to be stated to married persons who want to “cheat the system” and get an annulment based upon bogus “psychological reasons” that God is not mocked. Their original marriage is valid in the eyes of God.