Are 50% of Marriages Invalid?

By Dr. Jeff Mirus ( bio - articles - email ) | May 08, 2014

In his updated essay on Cardinal Kasper’s public support for dissent, Phil Lawler reports Kasper’s claim that Pope Francis thinks 50% of today’s marriages are invalid. Along with Phil and Edward Peters, “I am stunned by the pastoral recklessness of such an assertion” by Cardinal Kasper. But this does not mean that Pope Francis has not expressed this opinion, nor does it mean that the opinion is untenable.

Whether or not this opinion is tenable lies at the heart of the problem of Christian marriage in modern culture.

Let us consider a few of the grounds of nullity for the Sacrament of Matrimony:

1. A marriage is null if either of the parties is already (and still) legitimately married to someone else.
2. A marriage is null if either of the parties enters into it with the intention of not having children (or, depending on emphasis, without the intention of having children).
3. A marriage is null if either of the parties enters into it under significant external pressure (any pressure serious enough to compromise free assent), including pressure to marry because of an extra-marital pregnancy.
4. A marriage is null if either of the parties enters into it without understanding that they are committing themselves to a permanent bond.
5. A marriage is null if either of the parties is afflicted by a psychological incapacity to understand and fulfill the commitments of the marital state.

Given the immense cultural confusion about marriage in much of the contemporary world, it is not unreasonable to fear that huge numbers of nominal Catholics seeking to marry in the Church are, left to their own devices, incapable of contracting a valid marriage. This is the main reason for the development of major “Pre-Cana” programs in the Catholic Church during the second half of the 20th century, along with increasingly long delays between a couple’s statement of intention to marry in the Church and the first permissible wedding date. The Church wants to make sure that each couple possesses at least the minimum understanding of the sacrament to make it valid—and, indeed, to make the marriage work.

Ours is not the first age to face grave problems of nullity. In an era of arranged marriages, for example, any union in which the consent of the bride and groom was not really freely given could be declared null. (I do not mean to imply that this affected marriages in which the bride and groom went along willingly with the arrangement, for whatever reasons.) At that time, of course, couples were less likely to want to face the social, economic and cultural consequences of ending what the world regarded as a marriage. But now we live in a culture in which divorce is at best fully accepted as normal and, at worst, positively encouraged for self-fulfillment.

One must ask what a close look at marriage in the context of our culture’s prevailing attitudes might reveal about the true capacity and honest intentions of any given couple.

Particular Considerations

Catherine de Hueck Dougherty (1896-1985), the Foundress of Madonna House, was married in Russia to a wealthy aristocratic cousin at age 15. A relatively late bloomer, Catherine was still playing with dolls at the time. Her marriage was later annulled (correctly, in my opinion) on the simple grounds that in participating in such an arranged marriage she could not possibly have fully understood what she was doing. She was not yet mature enough to make this decision. This is a relatively famous case, but it nicely illustrates the fact that the man and the woman entering into the marriage contract must understand what they are doing, or the sacrament is of no effect; the marriage is null.

Of the five grounds for nullity listed above, I would say that the first three are relatively straightforward. They occasion very little debate. Where the relevant impediment can be established through objective testimony, the decision of the tribunal is easy. But the other two grounds are quite problematic in their interpretation. Not infrequently they have been used to make a laughingstock of the annulment process, bringing intense suffering to legitimately married spouses who deeply desire to remain married (not to mention the suffering of any children).

If Catherine de Hueck Dougherty’s annulment is an excellent example of the proper application of the fourth and fifth principles, it seems certain that there have been many more misapplications. On the one hand, for example, we can conceive of a person growing up in our divorce-ridden culture without realizing that marriage is a life-long commitment. But on the other hand, this impediment of basic ignorance is not the same as a common regret voiced after the fact, such as: “If I had really known what I was getting into, I would never have made the marriage vow.”

None of us ever knows, in that deeply personal sense, “what we are getting into”, nor is this sort of deeply experiential knowledge required for marriage. Ordinarily, the necessary understanding is merely an intellectual one. We need to know, in the formal sense typical of an adult, what it means to enter into a contract which binds until one party dies. We need to know what that contract entails—the exchange of marital rights, openness to the procreation of children, and the obligation of mutual fidelity and support. We need to be capable of undertaking the marital commitments as a personal responsibility. If a bare grasp of these things is not present at the time of the wedding, the marriage is null. A deeper appreciation of the meaning of marriage later on is as inescapable as it is irrelevant to the validity of the bond.

The same is true of a failure to honor the contract. If the understanding and intention are present when the vows are exchanged, that suffices for validity. Acting against that understanding and intention later, by reneging in any way through our behavior, creates terrible burdens, but it does not invalidate a marriage. Unfortunately, marriage tribunals have often attempted to turn failures after the fact into impediments before the fact, by interpreting them as psychological incapacities.

Psychological Incapacity

Our culture tends to confuse “did not” with “could not”. This is why we tend to regard everything as an addiction. Thus sometimes the failure of a couple to remain faithful to each other or to honor their responsibilities for mutual support or even to preserve a bond of affection is cited as grounds for nullity on the principle that if one party consistently fell short, then that party must be psychologically incapable of fulfilling the contract.

A genuine psychological incapacity, of course, provides perfectly legitimate grounds for nullity. We do not expect a child to be psychologically capable of the kind of understanding and commitment that marriage requires because the child is not sufficiently mature to recognize these for what they really are. The same is true of a person who is mentally retarded. And we must admit that significant mental, emotional and psychological disorders can also create a real incapacity. Moreover, the presence of such disorders is logically more frequent in a society in which so many men and women have been deeply scarred by their parents’ divorces, and by the willing destruction of their birth families.

It is impossible to speculate as to the numbers or percentages of marriages that are impacted by such psychological grounds. What is certain is that we can overwork our modern fondness for psychology. An actual incapacity to fulfill the responsibilities required to enter into a legitimate marriage is not the same thing as a failure to fulfill those responsibilities. Clearly the latter is far more common than the former. The frequent conflation of the two in annulment proceedings, particularly in the United States (where the annulment rates are substantially higher than the rest of the world), is a major scandal.

There is also a very practical consequence for tribunals which confuse unwillingness with inability, manufacturing psychological incapacities out of ordinary human selfishness and obtuseness. A huge practical fact governing the annulment process is that people frequently do not bother to undertake it until they want to marry someone else. But, logically, it must be presumed that if a person has a genuine psychological incapacity for something essential to the character of marriage (such that a previous marriage can be nullified), then that same incapacity—at least in the vast majority of cases—would likewise be an impediment to attempting a new marriage.

My advice to couples and tribunals that speed down this road is simple: Be careful what you wish for.

A Difficult Problem

Still, we do have a very difficult problem. It is, after all, also possible that in some places around the world, real grounds of nullity are ignored by tribunals; or that those affected do not have an adequate opportunity to pursue the annulment process; or that many young Catholics do not understand marriage well enough to enter into the Sacrament; or that the Church could implement approaches to marriage and annulment which would more effectively address the common situations we face today.

In other words, without in any way altering Catholic teaching on the nature of marriage, there is room for doubt about the best way to deal with our society’s current marital mess, including problems of validity and nullity. It goes without saying that there is also room for discussion and expressions of concern. If I can discuss these matters here, Pope Francis can certainly discuss them with others as he sees fit. Pope Francis, for example, might frankly state: “This is a vexing problem. Some people certainly have perfectly proper grounds for annulment. Modern culture militates powerfully against successful, life-long marriage, and we have no perfect way to assess the damage this causes. It is at least possible that a far higher number of Catholic marriages are invalid and could be annulled than we might guess. This is deeply troubling. We need to examine it closely.”

In fact, I give great credit to Pope Francis for calling an extraordinary synod this Fall so that bishops from around the world can examine and discuss this problem along with other problems that currently afflict marriage and family life. The importance Francis attaches to this is underscored by the fact that he is devoting the ordinary synod in 2015 to the family as well. But I cannot give credit to Cardinal Walter Kasper for his attempt to use the pope’s remarks to make his own book tour more successful. In attempting to sell a problematic proposal of his own, Cardinal Kasper is not following the Pope’s example. He is simply pushing himself way out in front, before the synods have had a chance to do their work.

Conclusion

Are fifty percent of Catholic marriages null? Personally, I doubt the number is that high, but I do not doubt that marriage as practiced today in both the world and the Church is badly broken. I suspect, given the customs of different societies concerning marriage around the world and across the years, marriage as practiced is always in need of significant repair. I think it is also prudent to recall that in the Catholic tradition, the benefit of the doubt is given to the marriage bond. We are not to declare a sacrament to be of no effect without significant evidence; nor is the easy dissolution of marriage good for the couples, their families or society as a whole. In fact, easy dissolution is extraordinarily damaging at every level.

The truth is that we do not know how bad things really are right now, from the sacramental perspective. Very likely it is impossible to know. But I think we recognize that in this as in so many other areas, the hierarchy of the Church must strive to do much better, as must all the Church’s members. For my part, I look forward with significant interest to what might emerge from the two upcoming synods on the family.

It is possible that the problems of one part of the world will be counterbalanced by different problems in other parts, so that nothing much will change. But with God’s grace, who knows? Most people have questions, and many relatively obscure things about both the natural institution of marriage and the Sacrament of Matrimony could be clarified. At worst, we could all use a healthy dose of inspiration. And at best? Well, surely there is room for better pastoral care.