Before Calling the Tribunal
Busy pastoral ministers require a quick and easy method to gather information about previous marriages to determine a possible remedy before a person enters, for example, a new marriage or the RCIA program. At first glance, any ecclesiastical remedy may appear as confusing, complicated, and more about legalities than pastoral concern. The following short “intake sheet” attempts to expeditiously gather the facts needed to clearly and easily facilitate discussion on a pastoral-canonical approach to possible resolution of previous marriages.
The teaching and discipline of the Catholic Church with respect to marriage simply states: “The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of children; this covenant between baptized persons has been raised by Christ the Lord to the dignity of a sacrament” (c. 1095,§1). Marriage is brought about through the consent of the parties, lawfully manifested between persons who are capable according to law of giving consent. Likewise, marriage enjoys the favor of the law if there is a doubt about its validity; consequently, in the event of a civil divorce, the Catholic Church upholds the validity of a marriage bond until the contrary is proven.
In general Catholic ecclesiastical law offers two approaches, a dissolution process and a declaration of sacramental nullity procedure, to re-establish one’s freedom for a new marriage after a civil divorce. The first remedy exists for those failed marriages where either one or both of the spouses were not baptized persons during the time of marriage. The second approach offers a remedy after civil divorce in three distinct situations: an unauthorized marriage by a Catholic before someone other than a designated priest or deacon; second, a marriage where one of the spouses had an impediment such as a previous marriage and civil divorce; or third, a marriage where there was a deficiency in consent or the ability of one or both the spouses.
The dissolution process, or first remedy, falls into two types. The Church will dissolve a previous marriage bond by the so-called the Pauline Privilege. This type of process pertains only for a marriage between two non-baptized persons which has ended in civil divorce/dissolution. The procedure comes from Saint Paul’s first letter to the Corinthians (7:12, 15). The law and practice of the Catholic Church allows the diocesan bishop to permit the non-baptized person to become a Christian by baptism and enter a sacramental marriage with a Catholic. The second dissolution process carries the popular name “Petrine” Privilege. This type of process applies in a marriage between one baptized Christian and one non-baptized person which has ended in civil divorce/dissolution. Unlike the Pauline process, the Holy Father resolves this one in Rome. One makes application through the parish pastor who will, at the tribunal’s direction, help one to complete the necessary steps.
The declaration of sacramental nullity approach, or remedy, has three processes. The first is the declaration due to a lack of canonical form. This method for re-establishing one’s freedom to marriage applies only to baptized Catholics who had not formally left the Catholic Church and who entered marriage before a non-Catholic minister or a civil official without the permission of their bishop or his delegate. Canon 1108 of Catholic Church law requires that every Catholic spouse, unless previously dispensed, enter marriage before a priest and two witnesses; otherwise, the church will not uphold the bond of marriage if it ends in the civil courts.
The second declaration process concerns the presence of an ecclesiastical impediment which existed at the time of a marriage ceremony and did not allow the creation of a bond of marriage. While Catholic law recognizes twelve such obstacles to marriage, this type of process frequently applies to the impediment arising if one of the spouses had a previous marriage and divorce with the first spouse still living. A person’s first marriage is usually the binding one so that a spouse is not able to enter a new marriage during the lifetime of the first partner.
The formal declaration of sacramental nullity process, more commonly called the annulment, is a third remedy. It is the normal procedure for re-establishing one’s freedom to marry in the Catholic Church for marriages between two baptized persons after a civil divorce. The Catholic Church presumes the spouses have a valid, sacramental and indissoluble marriage until the contrary is proven. Grounds for the grant of such a declaration are those provided by the Church code of canon law. But each ground falls under a category either as a deficiency in the consent of one or both spouses at the time of marriage, or an inability on the part of one or both spouses to engender and sustain the duties and obligations of marriage.
None of the five processes outlined above have any civil effects or consequences. Each is purely a church matter within the Catholic Church, and pertain to establishing one’s freedom to enter marriage in the Catholic Church. None of the five processes has any civil or ecclesiastical effects upon any children born to a couple. All children born of a couple, who later receive one of the above grants, remain the legitimate and lawful sons and daughters of their mothers and fathers as far as the Catholic Church is concerned. Moreover the Catholic Church holds all civil accords with respect to former spouses and children as still binding.
The accompanying “intake sheet” (see below) is simply a tool to gather factual information to determine if one or more of the five processes outlined above is possible in a particular case. When completed, the form provides the pastoral minister the information to knowledgeably speak with diocesan tribunal officials about the best possible remedy in a particular case. Ultimately, it is the local officials of the diocese’s tribunal which can suggest the best possible approach. Sometimes one particular approach may be more difficult, or even impossible, to implement because it is not possible to meet the particular requirements of that approach.
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___________________________ Your Full Name ___________________________ Addres ___________________________ City/State ___________________________ Telephone Number | Baptized Yes No Can we prove Yes No Witnesses of Non baptism available Denomination/Church Previously married**Yes No If Baptized or Professed Catholic: ___________________________ Church of Baptism/Profession of Faith ___________________________ City/State |
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___________________________ Former Spouse's Full Name ___________________________ Addres ___________________________ City/State ___________________________ Telephone Number | Baptized Yes No Can we prove Yes No Witnesses of Non baptism available Denomination/Church Previously married**Yes No If Baptized or Professed Catholic: ___________________________ Church of Baptism/Profession of Faith ___________________________ City/State
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___________________________ Marriage License Number ___________________________ Church/Place of Marriage ___________________________ Address ___________________________ City |
___________________________ Date of Marriage Was marriage convalidated or blessed by Church? Yes No ___________________________ Catholic Church ___________________________ City/State |
| Children Yes No Number of separations:__________________ Date of Civil Divorce/Dissolution |
___________________________ Date of Final Separation ___________________________ County/State
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| ** For Previous Marriage on back of page supply (1) Name of previous spouse; (2) their religion; (3) and whether of not this person was previously married. (Need proof of previous marriges.) Documents Needed: (1) Marriage license/record for all marriages; (2) proof of civil divorce/dissolution; (3) the baptismal certificates of all Catholic parties. | |
Reverend Arthur J. Espelage, O.F.M., is a priest of the Cincinnati, Ohio province of St. John the Baptist. Ordained in 1971, he holds a doctorate in canon law from the Catholic University of America. He has served as professor of Canon law at the Pontifical College Josephinum and within the tribunals of the Archdiocese of Cincinnati and Santa Fe. As of July 1999, he began his present duties as Executive Coordinator of the Canon Law Society of America in Washington, D.C.
This item 2747 digitally provided courtesy of CatholicCulture.org
