Annulment Mentality: What You Can Do About It, The
by Msgr. Clarence J. Hettinger
The first assumption of this essay is that the excessive case-load of American tribunals is the cause of both the annulment1 mentality and its pervasive propagation throughout the body of the Church. The second assumption is that this excessive case-load is a practical problem and therefore can be alleviated in a practical manner partly in the tribunal and partly in the rectory. The third assumption is that, in defense of the sacrament of marriage, the vast majority of annulment petitions never should have arrived at the tribunal and the fourth assumption is that a majority of those which got to the tribunal should have been rejected. Naturally this statement of the status quaestionis will bring out some strong reactions like unpastoral, legalistic, unsympathetic, and uncompassionate.
As recently as January 28, 1994, however, our Holy Father, Pope John Paul II, said, "It is indeed true that resolving practical cases is not always easy. But love or mercy . . . cannot prescind from the demands of truth. A valid marriage, even one marked by serious difficulties, could not be considered invalid without doing violence to the truth and undermining thereby the only solid foundation which can support personal, marital, and social life . . . These are the principles I feel obliged to emphasize with particular firmness during the Year of the Family, as we see ever more clearly the dangers to which a mistaken 'understanding' exposes the institution of the family."2
I. The original focus of this essay was the contribution that parish priests and their pastoral associates can make to the decline and eventual demise of the annulment mentality. Through their preaching, teaching, and counseling about marriage they share what the Holy Father termed the tribunal's "ministry of truth and charity."3 When I mentioned this to a person with an advanced degree in the social sciences who for some time has been researching the sociological aspects of American annulment procedures, he observed, "If parish priests hope to reverse the annulment mentality they must first address the even more rampant divorce mentality." I wonder if the Holy Father would totally agree.
In his 1981 allocution to the Roman Rota he practically equates the annulment mentality with the divorce mentality. "But it is likewise true that the same preparation for marriage would be negatively influenced by the pronouncements or sentences of nullity of marriage if these were obtained with too much facility. If among the evils of divorce there is also that of making less serious and demanding the celebration of marriage, such that today it has lost its necessary consideration among young people, it is also to be feared that in the same psychological and existential perspective declarations of nullity would be directed if they were multiplied as easy and fast pronouncements."4
In striving to uphold the sanctity of marriage and diminish the annulment mentality, the homiletic and teaching offices have two basic points to stress. First, "divorce is a grave offense against the natural law"5 as well as the divine positive law (Matt. 5:32, 19:10; Mark 10:11-12; Luke 16:18; 1 Cor. 7:10-11). Remarriage after divorce is therefore simply legalized adultery. Second, marriage is binding until the death of one of the parties not only for better but also/or worse. Obviously, of course, words will not get the job done without appropriate pastoral action, some suggestions for which will come later.
II. As was stated as an assumption at the outset, the numbers problem lies with tribunals processing very many marriage petitions, which ought not have been accepted or even presented. More than an assumption, it is the conclusion stated in an "unfavorable" Rota decision written by an American Rotal judge, Msgr. Thomas G. Doran, with another American judge, Msgr. Kenneth E. Boccafola, as one of three co-signers in a case that originated in America. "Whenever, as it seems, priests of the Church of the first or second instance think that the only and better pastoral solution for reconciling the Catholic parties of any shipwrecked marriage with the Church of Christ is a process of nullity, ecclesiastical tribunals are going to receive an immense number of such cases which, although they proceed with the most sincere good will, must turn out to be absolutely useless, not to say void, since they manifestly lack any canonical foundation."6
About the numbers, consider a fact from the papal magisterium and two statistical facts. First, according to Pope John Paul II,7 some serious psychopathology ("a serious form of anomaly . . ., however it is defined") must have afflicted one or both parties within the rather limited prenuptial period of life. Second, thousands of annulments are granted annually in the United States and Canada. Third, only about 4.5% of the general population is afflicted with a serious psychopathology at some time over the span of a lifetime. Now, for the sake of argument, let us generously say that half of the general population is Catholic and that the prenuptial period represents a third of the average life-span. It starts to become obvious that relatively very few annulment petitions will have a canonical foundation.
A Grave Problem For The Church
The previously mentioned social scientist, having worked on the numbers aspect of annulments, also observed, "Eliminating the annulment mentality among those in the pews is not nearly so important as eliminating the annulment mentality among tribunalists." They need to make a beginning by accepting the fact stated in a recent Rota decision that "the continually, daily increasing number of marriage cases" based on consensual incapacity "constitutes a grave problem for the Catholic Church regarding the sanctity and stability of the matrimonial bond . . . There is no one who does not see that 'cases of the nullity of marriage because of the above mentioned grounds are to be handled with the greatest of caution,' as the jurisprudence of our forum advises. The Supreme Pontiff has recalled all this to the mind of all who offer their services in tribunals in the administration of justice, with the purpose and plan that any shadow of arbitrariness in the handling of this kind of case should promptly vanish (cf. 1987 allocution, no. 7)."8
In theory, the annihilation of "arbitrariness" demands that all tribunals and all the people who request their services have the same authentic matrimonial doctrine and law and all tribunals below the Roman Rota have the same procedures to follow. In practice, however, this state of affairs is not verifiable everywhere because "whatever is received is received according to the recipient's mood" and, especially in matters carrying a high emotional charge, the practical understanding of doctrine, law, and procedures can deviate from the norm.9 Thus it is possible for any Catholic to lose the awareness of the real difference between divorce and annulment and to succumb to the annulment mentality.
If, then, as seems to be the case, "easy and fast" is an attribute of most of the multiplied American annulments, all tribunalists have good reason to be disturbed about it. For the Holy Father in his 1987 allocution to the Roman Rota clearly stated the grave theological effect of "an elevated number of declarations of the nullity of marriage" as "the scandal of seeing in practice the destruction of the value of Christian marriage through the exaggerated and almost automatic multiplication of declarations of nullity in the case of the bankruptcy of marriage under the pretext of some psychic immaturity or weakness of the contractants."10
"Annulment Syndrome" Is Widespread
This scandal, a spiritual virus spreading through the land, might suggest the term "annulment syndrome" and Catholics are not the only infected patients. For example, students in religion classes in our local private, nonsectarian Bradley University frequently initiate discussions about annulments.
This scandal clearly places a burden on the consciences of all tribunalists to accept their essential role in the solution of the problem, which is both jurisprudential and practical. Not to do so is to dissent from the authority of Christ's Judicial Vicar here on earth.
III. Parish priests have their important role to play in the solution of the arithmetical and theological problems. If the statistics presented above are just some-what close to being accurate, there will be ample opportunity for sharing in the tribunal's "ministry of charity"11 by dissuading at least a few would-be petitioners from presenting cases that are no more viable than the cat being dried in the microwave oven. The following is an example from the Rota of that type of case. "The undersigned Fathers tearfully dare to say that the decision in this present case was preordained, was predestined from the beginning of the acts where the petitioner wrote in his own hand, 'I would say for the first five or six years of our marriage it was a good marriage.' Behold the entire matter!"12
Nevertheless, as a manual of moral theology designed principally for seminary use advises, "If Catholics who have attempted remarriage think their first union might not have been valid, they should put that doubt to the test in a Church court."13 It is important, however, to recall that doubts can be founded or unfounded. Ultimately, of course, if necessary, the tribunal is where it will be determined whether a founded doubt offers sufficient basis for a declaration of nullity. More immediately, however, petitioners first bring their doubt to the rectory. Here is where you, instead of being part of your tribunal's case-load problem, can be a part of the solution. Many unfounded doubts can be detected in the rectory.
An example of indubitably unfounded doubts turned up on a tribunal intake sheet: "This marriage experienced no more difficulty than any other marriage." Another example turned up in a petitioner's preliminary statement: "This was a great marriage for fifteen or sixteen years."14 Unfortunately, both cases were presented and accepted for formal trial but that was before the Rota had clearly indicated to our tribunal that such cases must not even be accepted.15 As was to be expected with our epidemic annulment syndrome, the petitioners suffered much anguish while our tribunal passed the inevitable unfavorable decisions, the appellate court somehow managed to reverse them, and the Rota confirmed them.
Three tribunals would have been spared much time that could have been devoted to viable cases if those cases could have been prevented from starting either in the rectory or in the tribunal. It must be mentioned in this context, however, that, while a person has no right to demand that an unfounded petition be accepted, he has the right to present a petition that will certainly be rejected. Nevertheless, not to attempt to stop such cases just as soon as possible is cruel because it raises false hopes and the disappointed petitioners suffer great distress when the petition is rejected or the decision is unfavorable.
Entitled To Annulment?
Recently the very intelligent father of a petitioner whose annulment was not granted objected, "How can the tribunal deny a person who has made a mistake an opportunity to again be a practicing Catholic and to receive the sacraments? A person who commits murder fares better than this through the sacrament of reconciliation." He went on to say that two of the petitioner's cousins got annulments from the same tribunal "and again the bottom line was that a 'mistake' was made." This is an example of what might be called also the annulment "entitlement attitude."16
IV. "But how do I start the initial interview with a prospective petitioner?" Prior to any "practical" advice, you must remind yourself that you and the would-be petitioner are not looking for signs of invalidity. The honest approach really is that you won't know what you are looking for until you find it. You are searching for the truth about your client's apparent reception of the sacrament of marriage. "Truth, however, "the Holy Father reminds us "is not always easy: its affirmation is sometimes quite demanding. Nevertheless, it must always be respected in human communication and human relations."17
This calls for prayer with your client to accept the truth, whatever it may be. Put yourself in the place of the judge and your client in the place of the parties in these words of the Holy Father: "The judge must call upon the 'lumen Dei' in order to discern the truth in each individual case. In turn, however, the parties concerned should not fail to seek in prayer a basic willingness to accept the final decision."18
Frequently one of the first problems of the initial interview is the objection about a non-Catholic marriage that it did not take place in a church. It may take some time to get it across that all marriages of two non-Catholics are as valid as a marriage of two Catholics with the Pope as the official witness. As of November 27, 1983, non-Catholic marriages are not subject to any form of marriage or to ecclesiastical impediments.19 Only the Eastern Orthodox and all Catholics in communion with Rome have an obligatory form of marriage.
Given the fact that the vast majority of marriages are valid, the first part of the interview might start with a brief review of the sacramentality of every Christian marriage. Then, if neither party has remarried you should anticipate the first and truly pastoral question that a judge should ask as soon as a case comes to the tribunal:20 "Under what conditions would a reconciliation be possible?" "With God all things are possible" and the grace of reconciliation has been efficacious even when a case had progressed to the point where the parties had been summoned to give their testimony.
There must have been considerable hurt in almost any marriage that ends in divorce but distance sometimes heals. At this stage of the interview, then, some principles of Christian anthropology that reveal the meaning of the irrevocable "for better, for worse" aspect of the wedding vows might help the in-pouring of God's grace of forgiveness. These principles would have been even more helpful in marriage preparation or before divorce came to be considered because they apply to the types of difficulties that are to be expected in all marriages.
The Catechism of the Catholic Church, under the title, "Marriage under the Regime of Sin," lists a number of marital problems and states that the original rupture from God is the cause of the rupture of the original communion of man and woman.21 In other words, most marital problems can be explained by original sin rather than by some invalidating psychic defect. The feeling that these problems cannot be solved by cooperating with God's grace has at least the flavor of heresy.
Pope John Paul II tells us that Christian anthropology "considers the human person under every aspect, terrestrial and eternal, natural and transcendent. In accordance with this integrated vision, man in his historical existence appears internally wounded by sin and at the same time gratuitously redeemed by the sacrifice of Christ."22 Some implications of Christian anthropology for sustaining a marriage or for restoring a broken one are:
1) "The realization of the meaning of the conjugal union by means of the reciprocal gift of the spouses becomes possible only through a continual effort which includes renunciation and sacrifice. Love between the spouses must in fact be modeled after the same love of Christ who 'loved and gave Himself for us, offering Himself to God in a sacrifice of sweet odor' (Eph. 5:2, 25)."23
2) "The concept of normality, that is to say, of the normal human condition in this world, also includes moderate forms of psychological difficulty. Consequently it includes the call to live in accordance with the Spirit even in the midst of tribulations and at the cost of renunciation and sacrifice."24 As we used to read in the exhortation before marriage in the old rite of marriage: "Sacrifice is usually difficult and irksome. Only love can make it easy; and perfect love can make it a joy."25
3) The Catechism, referring to Gaudium et spes, §48, Galatians 6:2, and Ephesians 5:21, goes even further. It states that the sacramental grace of marriage offers the power to make that renunciation and sacrifice, indeed, the power "to be raised up from their falls, to give mutual pardon to one another, to bear one another's burden, and to have a foretaste of the Wedding Feast of the Lamb."26
Healing Power Of Grace Is There
V. These thoughts from Christian anthropology, particularly the fact of human sinfulness and its redemption through the Blood of the Lamb, are elements of the complete picture of human normality. Hence the great healing power of the sacramental grace of marriage which is one reason for the presumption that few broken marriages are invalid marriages.
This suggests that alleging a successful remarriage as a motivation for giving a "favorable" decision really constitutes a considerable argument against such a decision. On the basis of the axiomatic premise that an inference from fact to ability is valid, it is logical to ask, "If the ability to sustain the remarriage is present, why was it absent from the previous marriage?" The Rota applied this axiom to a sacramental marriage that was successful for a number of years27 but it is even more applicable to a successful but graceless remarriage. The petitioner will have to be able to offer stronger than ordinary proof that the breakdown of the first marriage was due to a psychic defect that prevented the operation of the sacramental grace of marriage.
A reason for the presumption of validity might possibly be framed in a question which summarizes canons 1058, 1060, and 1083, §1, and might lay an individual's annulment mentality to rest: "At the time of the wedding, were you and your former spouse as mature as the normal sixteen year old boy and fourteen year old girl?" The question will seem bizarre to most people when they first hear it but, without using the numbers of canon 1083, § 1, the Holy Father confirmed this yardstick of sufficient nubile maturity in his February 5, 1987, Rotal allocution where he warned against "confusing a psychic maturity that is the point of arrival in the development of man with the canonical maturity that is instead the minimum point of departure for the validity of marriage."28
It is a Catholic fact of life, then, that annulments on psychological grounds can be granted only to individuals who had not attained that minimum level of maturity at the time of their wedding. Hence, it is necessary to discern whether it is a case, as our Holy Father said, of "a serious psychopathology, no matter how it is defined" or a case of one or both parties "who can have neglected or misused the natural or supernatural means at their disposal."29
The point is, the marriage under challenge may be the only one that will ever be available to the parties. These thoughts may be the occasion of the grace of reconciliation if it becomes apparent during the interview that there is no likelihood of a favorable decision. If there is no danger of a civil suit for alienation of affections, the attempt at a reconciliation would be very much in order.
Presumption Of Validity Exists
VI. Since the vast majority of annulments are based on psychological grounds, the focus of the initial interview is on marriage as the most personal of all interpersonal relationships. Therefore, the initial interview would deal with the parties' interaction from the start of dating to the final separation. The Rota recently has practically elevated a marriage that held together for a long period of time, sometimes with considerable stress and strain, to the status of a presumption of validity over and above the general presumption in favor of the validity of marriage. In practice this means that only extraordinarily strong proofs of a grave psychic irregularity can overturn the presumption. The great marriage for fifteen or sixteen years mentioned earlier is an obvious example of a case that should not reach the tribunal.
Recent Rota decisions in similar cases have noted a number of character or personality defects as psychic irregularities that do not invalidate a marriage. Their common denominator is that these defects do not exceed "the capacity of the subject to strive for transcendental values."30 All of them had been ineptly employed by a lower tribunal as part of the proof of nullity. A collection is inserted here.
Some surprising items appeared together in a single Rota decision: instability, stubbornness, excessive dependence, despotic authoritarianism, exaggerated self-worship, and narcissism. Some items from other Rota decisions belong here also: being the child of alcoholic parents or the product of a dysfunctional family; transvestism; and explosive temper. Of course, these could be juridically significant if they prove to be a component of some serious psychic irregularity.
Moral defects in general should be mentioned also. While in this context we generally think of infidelity and other overt causes of marital unhappiness, statistics31 point to premarital sexual immorality as opening a truly mysterious32 path to broken marriages. Given the prevalence of premarital sex and premarital concubinage in particular and the fragility of the marriages that follow, they furnish a significant part of the human weaknesses that cause marriages to break down without being invalid. One might think of the resultant inadequate commitment, openness to infidelity, and lack of communication as consequences of premarital sex, and the ability, certainly implicit in premarital concubinage, simply to walk away from conflicts and differences.
Some items are psychologically and juridically bizarre: great affection accompanying the decision to marry; guilt feelings; romantic love; infidelity; superficiality, simple naiveté, and light-mindedness; lack of common sense; and incompatibility.
Weaknesses Don't Invalidate
Other items should have been dealt with in a serious pastoral marriage preparation program with honest participants: pressure from a fiancé; lack of agreement on decisions; lack of commonality of ideas, ideals, religion, and interests; differences in personality; unresolved differences; lack of discussion of plans for married life; and tense relationship.
Along with imprudence one would list a hasty decision to marry; impulsive decision to marry; lack of discussion of plans for married life; lack of foresight into future difficulties; unrealistic expectations; marrying to give the child a name; and lack of a firm commitment.
These Questions Should Be Asked
The following come under the heading of psychologicalization: the lack of capacity to evaluate one's own or the other's capacity for marriage and subconscious or unconscious elements or motivations.
In order to provide for the possibility that other than psychological grounds might be present, the following questions about children and permanence should be asked with reference to both parties if the topics were not discussed during the investigation of the relationship. If there was any problem with fidelity it would have come up earlier in the interview and only quite rarely will offer a basis for invalidity.33
"Before marriage, would you and your former spouse have said yes or no to the following statements?
"I am open to having children when they come . . . I prefer not to have children right away but I am open to the possibility of children immediately . . . I feel that it is up to me to decide if and when there will be children . . . I definitely do not want children right away and I will not compromise on this . . . I definitely do not want children at all and I will not compromise.
"I intend to enter a permanent and lifelong union . . . I intend to get married but if the marriage is unhappy or if my expectations of marriage are not met, I reserve the right to leave the marriage with the option of marrying someone else . . . I intend to marry but will remain married only as long as we both love one another." I conclude with a quotation from a recent Rota decision and Pope John Paul II's summary of the problem. The Rota: "As before we were forbidden to say that a marriage was invalid just because it had been strange or not really ordinary, so now no one will consider a hurting marriage invalid just because of that fact."34 The Pope: The harm to common life may be great enough to justify separation35 but "only the incapacity for and not just the difficulty of giving consent and realizing a true community of life and love makes a marriage invalid . . . A true incapacity is hypothesizable only in the presence of a serious form of an anomaly which, however it is defined, must substantially damage the capacity for intending and/or willing of the contractant."36
The Lord's Union Is Defended
When I asked our judicial vicar for suggestions about this essay he asked me to stress the importance of parish priests and their pastoral associates in the process of screening out nonviable marriage cases. Can I say more than that you will be taking your part in the Church's defense of a union that was made according to the image of the Lord's union with his beloved Bride37 and that he will surely be pleased?
1. Annulment is understood here as a decision based on canon 1095, 2° and 3°. At least 95% of all marriage cases are based on that canon.
2. 1994 Allocution to the Roman Rota, no. 5.
3. John Paul II, Allocution to the Rota, February 5, 1987, no. 9.
4. As reported in + Zenon Grocholewski, "Current Questions Concerning the State and Activity of Tribunals with Particular Reference to the United States of America," in Raymond M. Sable, ed., Incapacity for Marriage: Jurisprudence and Interpretation: Acts of the III Gregorian Colloquium, p. 227.
5. Catechisms de l'Eglise Catholique, §2384.
6. Doran, Rota decision, Peorien., November 5, 1992, no. 11.
7. Allocution, February 5, 1987, no. 7.
8. Faltin, Rota decision, February 21, 1991, no. 12, Monitor Ecclesiasticus, Vol. 117 (1992), p. 43.
9. Ewers, Rota decision, April 4, 1982, no. 2, in Monitor Ecclesiasticus, Vol. 106 (1981), pp. 295-296. See also Egan, Rota decision, December 9, 1982, no. 3, in Monitor Ecclesiasticus, Vol. 108 (1983), pp. 234-235.
10. No. 9.
11. "It is a ministry of truth inasmuch as the genuinity of the Christian concept of marriage is preserved even in the midst of cultures or moods which tend to obscure it. It is a ministry of charity towards the ecclesial community which is preserved from the scandal of seeing in practice the destruction of the value of Christian marriage through the exaggerated and almost automatic multiplication of declarations of nullity" (John Paul II, 1987 allocution to the Rota, no. 9).
12. Doran, Rota decision, Peorien., November 5, 1992, no. 12.
13. Germain Grisez with others, The Way of the Lord Jesus, Vol. 2, Living a Christian Life, pp. 735-736. My emphasis.
14. Cf. Serrano, Rota decision, Peorien., February 28, 1992, no. 3. In the case of a lengthy marriage, "almost a priori, the well known, also metaphysical axiom is operative, 'An inference from fact to ability is valid.' For how, unless most vehement and peremptory arguments urge it, will one have to be called unequal to marriage who tandem aliquando lived in marriage for quite a long and even a very long space of time and fulfilled its purpose?"
15. Cf. Burke, Rota decision, Wayne-Castren., July 22, 1991, no. 13, and, for a very strong statement about the outcome of such cases, Serrano, Rota decision, Peorien., February 28, 1992, no. 3.
16. Cf. Wolf Wolfensberger, "A Personal Interpretation of the Mental Retardation Scene in Light of the 'Signs of the Times,'" in Mental Retardation, Vol. 31, No. 1 (February, 1994), p. 20: "Materialism, individualism, and sensualism have so interacted that people got so used to the material affluence of modernistic society that they began to think that they were entitled to it in fact, that somehow they have a right to whatever they want in life, that nothing they want should ever be denied them."
17. Allocution to the Rota, February 1,1994, no. 5 his emphasis.
18. 1984 allocution, no. 4.
19. See canon 11 and canon 1117 collated with canon 1127.
20. See canon 1676.
21. Cf. §§1606-1607.
22. 1988 allocution, no. 5.
23. 1987 allocution, no. 6.
24. 1988 allocution, no. 5.
25. Collectio Rituum, 1964, p. 290.
27. Serrano, Rota decision, Peorien., February 28, 1992, no. 4.
28. No. 6.
29. 1987 allocution, no. 7.
30. 1988 allocution, no. 4.
31. Michael J. McManus, Marriage Savers: Helping Your Friends and Family Stay Married: "The National Survey of Families and Households reported in 1989: 'Unions begun by cohabitation are almost twice as likely to dissolve within ten years compared to all first marriages: 57 percent to 30 percent" (p. 91). About sex in a dating relationship: "Nonvirgins have a divorce rate that is 53 % to 71 Vo higher than virgins" (p. 92). For a case history of premarital concubinage, see K.C. Scott, "Mom, I Want to Live with My Boyfriend," Reader's Digest, Vol. 144, No. 862, February 1994, pp. 77-80.
32. Premarital sex violates the divine design of marriage as the sole locus of lawful sexual activity. See Catechisme de l'Eglise Catholique, §§2349, 2396, 2400; John Paul II, Veritatis splendor, §53.
33. "Almost 95% of Americans think cheating on your spouse is wrong" (Peter Kreeft, "Fanatics of Love," Crisis, Vol. 12, No. 2 [February, 1994], p. 19).
34. Senano, Rota decision, Peorien., July 12, 1991, no. 4.
35. Canon 1153, §1.
36. 1987 allocution, no. 7.
37. Cf. Code of Canons of the Eastern Church, canon 776, §2:" . . . the spouses are united according to the image of the indefectible union of Christ with the Church and are quasi-consecrated and strengthened through sacramental grace."
Msgr. Clarence J. Hettinger was ordained as a priest of the Peoria Diocese in 1942. After nine years as assistant pastor and two years of graduate canon law studies, he was full-time CEO of the Tribunal for ten years. After eleven years as pastor-officialis and eight years as pastor-associate judge, he works in the Tribunal office as associate judge and utility player. His last article in HPR appeared in December 1993.
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