Isn't It Just a Catholic Rubber-Stamp on a Divorce?
by Peter John Vere, JCL/M (Canon Law)
What does the Church do when a couple — or at least half of it — says "I do" but means "I don't"? It seems to many people that with a little sleight of hand and a lot of money, the couple can be given a kind of do-over. But in reality, obtaining a declaration of nullity (annulment is a misnomer; the Church cannot "annul" a marriage) involves a rigorous legal procedure that gives that couple the opportunity to prove to a tribunal that a real marriage never took place.
Marriage enjoys "the favor of the law," according to canon 1060 of the Code of Canon Law. In everyday language, this means that the Church assumes that a marriage is valid unless it is proven not to be. The wisdom behind canon 1060 is clear: Since no marriage is perfect, people may have occasional doubts about their marriages. But it is one thing to allege the invalidity of a marriage; it is quite another to prove it — as a person seeking a declaration of nullity must do.
The Church cannot actually nullify a marriage, despite the language we use to talk about the process. When a couple or individual petitions for an "annulment," the tribunal process seeks to uncover whether a valid marriage — as the Church understands it — came into being when the couple exchanged their vows or whether the husband or wife did not fully consent to the proposed marriage. Through an arduous legal process, the tribunal determines whether to overturn the presumption of validity of a marriage before them.
The process is strenuous: It means putting the whole history of a failed union into words, dredging up painful memories, and doing a hard self-examination. Moreover, the whole process for many is misunderstood or shrouded in mystery. Indeed, many good Catholics flinch from seeking justifiable declarations of nullity. Yet the process exists to help those very people.
How the Process Begins
The process opens when a husband or wife contacts the local parish or tribunal and shares preliminary information about the marriage. The petitioner (the spouse who initiates the process) provides baptismal certificates, the marriage license, and a divorce decree (if there is one). The baptismal certificate gives the faith background of the couple, the marriage license establishes the age of the individuals at the time of their wedding, and a divorce decree indicates that there is little hope of reconciliation. After a lengthy and probing interview, a petition is drafted that accuses the marriage of invalidity and states why the petitioner believes it to be invalid. The tribunal understands that most Catholics are not experts in canon law. Someone will usually help the petitioner narrow down the grounds and draft the petition. That petition is then submitted to the tribunal.
The petition rises and falls on the question of consent. Marriage consent breaks down into three areas: capacity, knowledge, and will. For example, a severe alcoholic lacks the capacity to consent to marriage if his alcoholism prevents him from carrying out the natural obligations of marriage. Similarly, a marriage is invalid if a woman does not know that children come about through some sort of sexual cooperation between husband and wife. These days, though, spouses are more likely to invalidate their wedding vows by willfully excluding the possibility of children.
The Jurisdiction of the Tribunal
The judicial vicar (see "People in the Process," page 29) receives the petition. If he determines that there is no reasonable hope of reconciliation between the parties, he then decides whether his particular tribunal is competent to hear the case. There are only three possible tribunals: the one in the diocese in which the marriage was contracted, the one where the petitioner or the former spouse resides, or, lastly, the one where the most proofs are present. A proof can be anything from a witness to old love letters. In addition, the judicial vicar of the former spouse's diocese must give his consent to the case proceeding in another tribunal. He may do so only after consulting with the respondent. These conditions prevent petitioners from "shopping" for a tribunal willing to rule in their favor. If the tribunal appealed to is not deemed competent to hear a case, its decision is automatically null.
The Respondent's Role
If the tribunal accepts the petition, that tribunal becomes known as the court of first instance. (All cases alleging the invalidity of a sacrament are judged at least twice.) The judicial vicar always contacts the former spouse, or respondent, and invites him or her to respond within fifteen days. The fifteen-day time limit ensures that the former spouse cannot needlessly delay the petition.
The respondent may refuse to be involved, or the marriage may have taken place so long ago that the respondent can no longer be found. The process can continue, though, provided the tribunal can demonstrate a good faith effort to find and involve the respondent. A violation of the respondent's right to participate invalidates the process. If the process might lead to a dangerous situation between the former spouses, the tribunal does all it can within the bounds of the law to protect both spouses.
The judicial vicar then issues a decree called the joinder of the issues, which weighs the preliminary information, specifies the grounds to be investigated, and identifies the party against whom the grounds are alleged. There is no such thing as a no-fault declaration of invalidity: If a marriage is invalid, it is because there is a problem with the consent of either the petitioner or the respondent or both.
The Testimony of the Spouses and Witnesses
The petitioner and the respondent are then asked to give formal testimony. This testimony is sometimes given in person, sometimes in written form, and sometimes a combination of both, depending on the procedure of the particular tribunal. In addition to covering the period the couple were married, the testimony also covers the family background of each party and the events leading up to the marriage. Because a declaration of invalidity states that a marriage was invalid from the beginning, the tribunal must ask questions about each person's state prior to the marriage, including childhood and upbringing. Knowing what sort of marriages the parties experienced firsthand — usually those of their parents and grandparents — gives the tribunal a good indication of what the parties anticipated marriage to be.
The tribunal asks questions about prior dating relationships and the couple's courtship, engagement, and wedding. This helps the judges determine if the couple carried unresolved issues or negative behavior patterns into their marriage.
Each party then presents witnesses and shares other proofs with the tribunal. The documentation and evidence (called the acts), along with the proceedings of the case, are then published. Both parties and their advocates are invited to review and respond to this publication of the acts. The advocates then submit a brief in which they argue in favor of the party they represent. The advocates' briefs, along with the other acts, are given to the defender of the bond, who reviews them and composes a brief presenting reasonable arguments in favor of the marriage's presumed validity.
The First and Second Instance Judgments
The case then proceeds to the judge(s) for first instance judgment. Affirmative or negative, the reasons for the decision are written down and carefully explained. Even if the petition receives an affirmative decision at first instance, the petitioner is not yet free to marry. The validity of the first marriage is still intact until the second instance tribunal ratifies the first decision. If second instance confirms the affirmative decision, if there are no appeals to the Roman Rota (one of two supreme courts of the Church in Rome), and if no prohibitions or restrictions are attached to the sentence, then each party is free to marry.
Prohibitions and Restrictions
Sometimes the tribunal determines that the problems that led to the failure of the marriage are still present and of a serious nature, and consequently a prohibition or restriction is placed on any future marriage. This usually means that a future marriage is delayed until certain conditions have been met by the parties concerned. These are usually temporary, but they can sometimes be permanent depending on the reason for the imposition or the disposition of the parties. Prohibitions and restrictions are not punitive; they are designed to ensure that whatever kept the first marriage from being a true marriage is addressed in order to prevent yet another invalid marriage from being contracted.
Prohibitions and restrictions come in the form of a monitum or a vetitum. A monitum is a warning of some kind — such as that one party was the victim of domestic violence or that the other is prone to alcoholism. It is a yellow light that warns a priest or deacon about previous difficulties before he officiates at the wedding of a party to an annulled marriage. The monitum is generally addressed to the individual charged with preparing the new couple for marriage.
A vetitum is more serious. The vetitum is a red light telling a priest or deacon that a new marriage may not proceed until certain conditions are met. It requires a specific action by the party to the invalid marriage — and possibly his or her intended spouse — before a new marriage can take place. If the husband, for example, is prone to serious drug addiction, a vetitum might require him to demonstrate that he has been drug free for at least a year before being allowed another attempt at marriage. Generally, these prohibitions or restrictions can be lifted only by the bishop or his judicial vicar.
The Sacrament of Marriage
It is well to remember that marriage is a sacrament when both husband and wife are baptized. Only God can dissolve a consummated sacramental marriage between two baptized persons — and he does so only through the death of one of the spouses. But the declaration of invalidity, or "annulment" process, is part of the larger teaching of the Church on marriage. Knowing what true marriage is, we can determine when it is not present and free the parties to enter into a true marital bond.
People in the Process
Judicial vicar: Appointed by the diocesan bishop to administer the tribunal and to exercise the judicial power of the bishop. One or more adjutant judicial vicars may be appointed to assist him depending upon the size and needs of the diocese. The judicial vicar and his adjutants must be priests.
Promoter of justice: Appointed by the diocesan bishop, he is like a county prosecutor in the secular courts. The promoter of justice may initiate cases when there is an injustice in need of correction. He is seldom involved in marriage cases.
Defender of the bond: At least one defender of the bond is appointed to each diocesan tribunal. Responsible for presenting reasonable arguments in favor of the marriage bond's presumption of validity. He or she can be a cleric or a layperson but must possess at least a licentiate in canon law (except in cases where the Holy See grants special permission).
Judges and notaries: Several are appointed by the bishop to judge cases coming before the tribunal and to authenticate the various legal documents relevant to the judicial process. The judicial vicar or his adjutant assigns specific judges, notaries, and a defender of the bond to each case.
Sole judge or collegiate tribunal of three judges: Assigned by the judicial vicar. A sole judge must be a cleric; in a collegiate tribunal, if two judges are clerics, a qualified layperson may serve as the third. All judges must have specialized training, with a degree in canon law unless given a special indult by the Holy See.
Auditors: Appointed by judges to collect testimony on behalf of the tribunal, they are trained to ask questions of the parties and their witnesses. This position is a common introduction to tribunal ministry. Many canonists begin their canonical ministry as auditors.
Assessor: Designated by the judge to give advice on a specific issue or on the problem of a trial.
Experts: Usually a psychologist or psychiatrist called by the judges to review a case or examine the parties to it and submit a brief to the tribunal. Occasionally, the judge may call experts in other areas; for example, if a wedding involves two soldiers in a combat zone, the judge may call a retired commanding officer as an expert in military life.
Petitioner: The person who applies to have his or her marriage examined by the tribunal.
Respondent: The former spouse of the petitioner.
Advocate and procurator: An advocate may be appointed by petitioner or respondent to argue on their respective behalf. A procurator may be appointed by the petitioner or respondent to receive documents from the tribunal and make decision on behalf of the petitioner or the respondent. The same person may serve as both procurator and advocate.
Witnesses: Provide evidence in a case. Parents, siblings, relatives, and old friends who knew the couple well before their wedding day usually appear, but anyone can be witness (unless they have been expressly prohibited by law). Can be called by the petitioner, respondent, or the tribunal. Witnesses are bound to tell the truth to a court that lawfully questions them.
Pete Vere is a canon lawyer and a Catholic journalist. He is the co-author of Surprised by Canon Law (Servant Books) and More Catholic Than the Pope (Our Sunday Visitor, available from Catholic Answers).
Jacqueline Rapp is a writer, a judge for the tribunal of the Archdiocese of Louisville, and an independent canonical consultant for several dioceses across the United States. She resides in Louisville, Kentucky, with her husband, Keith, and their daughters Alexandra and Sabina.
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