Too Many Invalid Annulments
by Msgr. Clarence J. Hettinger
A 1991 Rota decision said, "The continually, daily increasing number of marriage cases especially in some regions of the world in which the ground is defect of discretion of judgment and/or incapacity to assume and fulfill the essential obligations of marriage due to causes of a psychic nature constitutes a grave problem for the Catholic Church regarding the sanctity and stability of the matrimonial bond. Although this phenomenon is to be placed most especially in modern times both in a more profound investigation of anthropology and in a more perfect knowledge of the doctrine about the nature of marriage, 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 these kinds of cases should promptly vanish (cf. 1987 allocution, no. 7."1)
"And the Pharisees came up to test him by asking, 'Is it lawful to divorce one's wife for any reason whatever?"2 It is well known that, for the liberal Jewish theologians of those times, "any reason" was broad enough to include burning the man's food or having less sex appeal than another woman. Jewish divorce for any reason has its counterpart in the American idea of marriage: "If it doesn't work out I can get a divorce." In both systems "the question concerns not (as in Mark) the legitimacy of divorce but that reasons are sufficient, assuming that it is at least sometimes permitted."3 It remained for our free thinking, licentious, narcissistic age to "progress" beyond the School of Hillel and develop the American idea of marriage into no-hassle, no-fault divorce.
Obviously the United States suffers from a divorce mentality. If you want a divorce you file for divorce and eventually you get a divorce. Now the American divorce mentality has found its exact counterpart in the scandal of a Catholic American annulment mentality, all the more scandalous because it has come to affect non-Catholics and non-Christians as well as Catholics. "Dear Abby," for example, sees the annulment process as just a bit more complicated than the divorce process. You get a divorce. Then you file for an annulment and eventually you get an annulment.
The Hillel/American and the American/Catholic counterparts are now being paralleled in divorce court judges and tribunal judges. The first Roman warning that cases of psychic incapacity can turn a Catholic court into a divorce mill goes all the way back to 1969.4 The roots of the problem, however, had been exposed almost thirty years earlier.
Monsignor Doheny stated in his Rota sentence of November 12, 1940, "In our times, since the knowledge of the existence of matrimonial causes is more and more publicized, people who have entered an unhappy marriage easily imagine some ground of nullity in order to reclaim their freedom and since later they facilely compose arguments from futile recollections with the cooperation of witnesses who, for some advantage or out of a sense of compassion, together with the parties, are in no way adverse to perverting the faith of truth and oath, the judge must proceed cautiously in these cases."
Monsignor Wynen wrote in his sentence of November 23, 1940, "The unhappy outcome of a marriage, especially if a definitive separation of the spouses follows without hope of a reconciliation, quite often induces the spouses to start investigations as to whether perhaps the marriage entered by them might be invalid in the eyes of the Church so that they might be able to regain their freedom. Then, if they do not discover some ground of nullity manifestly existing in the nature of things, they usually turn their attention to the partner's faults and with the help of some advocate they try to construe from them some defect of matrimonial consent which would make the marriage invalid."
The current American jurisprudence position also has almost a three-decade history. Since the late 1960s, American tribunals generally became concerned about the multitude of divorced Catholics and the few declarations of nullity being given for them. Under the impetus of Vatican II, some new psychological insights, and the American Procedural Norms, effective on July 1, 1970, tribunals addressed the situation of remarried divorcees by taking up consensual incapacity due to psychological defects as the principal if not exclusive ground of nullity. Immediately the number of favorable decisions increased drastically. One assessment was very enthusiastic. "The American Procedural Norms were dramatically successful. By the late 1970's, thirty thousand annulments a year were being granted, judicially and judiciously, by United States tribunals."5
Taken in a somewhat broad sense, the term "judicially" was accurate. However, "judiciously" expresses a sentiment not shared by everyone. Already in 1981 in his address to the Rota on January 24, Pope John Paul II expressed concern "about decisions of the nullity of marriage 'obtained with excessive facility.'"6 This facility was possible because, aiding and abetting the new procedural norms, questionnaires had been constructed for the almost exclusive purpose of eliciting evidence of psychic traits which tend to create difficulties between spouses. Also, although with complete good will, the interpretation of the evidence was not inspired by the principles of Christian anthropology.
In 1983 an American canonist asked, "What are tribunals doing to ensure that the increasing number of annulments they grant are not understood by the average Catholic as 'another name for divorce?' One clear indication that tribunals are failing in this regard occurs when judges employ jurisprudential strategies whereby there is hardly any way a Catholic in an irregular second marriage may not either receive an official annulment or be readmitted to the sacraments despite their irregular unions."7 In 1986, under the current jurisprudential system, on the authority of an assistant secretary of the U.S. Catholic Conference it was stated that "approximately 90% of separated and divorced Catholics could obtain annulments from the Church."8
Also during 1986 the Rota heard ten cases from the United States' Two of them were not sufficiently significant to warrant publication of the text of the decision. Only one of them was affirmative and, at that, only on one of two grounds.
Ironically, another also was affirmative but it was "yes, nullity of sentence has been proved." The rest were negative. Therefore, realistically, that is, in light of the principles of Christian anthropology, the possible 9:1 success ratio just mentioned should have been reversed to 1:9.
The fact that the Rota reversed the American success ratio of itself suggests only that there is a problem. One can see the real problem by analyzing the Rotal decisions. The result is a rather long list of psychic defects and interpersonal irritants which Rotal jurisprudence finds irrelevant or insufficiently serious for a declaration of nullity.
A serious reading of the 1986 volume of Rotal decisions allows one to propose the thought that the 1940 foreshadowing of things to come is now definitely a reality. The Rotal data clearly imply that United States tribunals are giving too many declarations of nullity on psychological grounds. This is a paraphrase of the Apostolic Signatura's 1992 response to the report of a number of United States bishops on their tribunals' activity during 1991. It follows from too many affirmative decisions that a high percentage of declarations of nullity are themselves invalid.
If this inference is correct, it may be assumed that there are deficiencies in our understanding of jurisprudence and Christian anthropology and/or in the application of jurisprudence to the facts of a case. This raises a first question, "What is jurisprudence?"
Another way to put the question might be, "Is there, for example, an American jurisprudence distinct from or parallel to Roman jurisprudence?" Since Pope John Paul II has spoken clearly in the negative on this matter on two separate occasions, the answer is, "This is as possible as it is for there to be an American Church distinct from or parallel to the Roman Church."
Judges shirking responsibility
The Supreme Legislator and Judge first authentically opened his mind on the matter in 1981.10 Now, while it is true that papal allocutions are not jurisprudence, they have the highest authority. "The Roman Pontiff . . . enjoys supreme, full, immediate, and universal ordinary power in the Church, which he can always exercise freely."11 This means, according to an official of the Signatura, that the allocutions "have a particular authority for they are both a commentary of the Supreme Legislator on the law which he has promulgated and, what is more, an exercise of the ordinary magisterium of the Supreme Pontiff, to which is owed religious obedience (cf. canon 752)."12
The Holy Father returned to this theme eleven years later in 1992. "Again, precisely in the context of interpreting canon law, particularly where there are or seem to be lacunae legis, the new Codeexplaining in canon 19 what could be inferred also from the analogous canon of the preceding legislative textclearly lays down the principle according to which the jurisprudence and praxis of the Roman Curia takes its place with the other supplementary sources. If then we limit the significance of this expression to cases of marriage nullity, it seems evident that, on the level of substantive law, i.e., in deciding the merits of the cases presented, jurisprudence must be understood exclusively as that which emanates from the Tribunal of the Roman Rota. This context, therefore, explains what the Constitution Pastor Bonus states in attributing to the Rota the responsibility of 'providing for uniformity in jurisprudence, and, through its sentences, of offering assistance to lower tribunals' (art. 126)."13
As was noted above, in 1992 the Apostolic Signatura is frankly telling at least some United States bishops that their tribunals are giving too many declarations of nullity on psychological grounds. Now, if too many annulments are being granted, there is only one reason. Judges (their helpers, defenders of the bond and advocates must be included as well) are shirking their responsibilities in the pronouncement of nullity decisions in several ways.
First, judges have a distorted appreciation "about the matter to be settled by the sentence."14 This involves the nature of marriage and the capacity for living a lifelong marriage judged in light of Christian anthropology. An example of the distance between Christian anthropology and the American idea of annulment is found in a 1989 Rota decision which reversed the affirmative decision of an American tribunal.
The American tribunal declared that the marriage was invalid on the ground of lack of due discretion. The reason, that "'his personality characteristics chose this specific wife for him. The same could be said of the respondent,' has the flavor of a poetic statement rather than a juridical sentence."15 Then the tribunal also argued for nullity on the ground of incapacity to assume the essential obligations of marriage. Its reasoning was that "the fit of their personalities was basically a symbiotic16 one which perpetuated the patterns in both their lives. . . . With the help of guidance these roles began to change. And when the roles changed and they began moving toward equality, the marriage came apart, which shows the Court that this was only a facade and not reality. . . . The judges concluded from the simple shipwreck of the marriage . . . to the nullity of the marriage because of incapacity of the spouses to assume the burden of 'true mutuality,' which is quite indefinite."17
Second, "the judge must evaluate the proofs according to his conscience."18 He acts with a malformed conscience if he does not apply to his reading of the evidence the principles of Christian anthropology as mandated by the Supreme Legislator and exemplified by Rotal jurisprudence.
The anthropological principles relevant to the pronouncement of declarations of the nullity of Christian marriages may be drawn from the second Matthean divorce pericope.19 In the original state of the human race, "in the beginning," prior to original sin, divorce and remarriage would not be a problem. In the fallen state of the human race, "if this is the state of man with his wife, it is better not to get married." However, in the elevated state of the human race, thanks to the sacrament of marriage, "with God all things are possible."
The exceptive clause opens the way to declarations of nullity. However, not all broken marriages are invalid marriages and, on one reading of the text accepted as an invitation to religious celibacy, there are eunuchs for the sake of the Kingdom who refuse to attempt another marriage after receiving a divorce or a negative decision regarding their former marriage.20 They can do this by making use of the quasi consecration and strength of the grace of the sacrament, qualities of Christian marriage taught by Vatican Council II,21 which the Church in The Code of Canons of the Eastern Church has authoritatively proposed as essential elements of Christian marriage.22
One of the 1986 decisions gives a sort of compendium of the present anomalous American jurisprudential situation, locating its roots in 1971. "According to the jurisprudence which arose in the U.S.A. after 1971 (i.e., after the grant of independent procedural legislation given to that Conference of Bishops), the shipwreck of a marriage is a clear demonstration a posteriori that the parties were incapable at the time of marriage of assuming a partnership of the 'whole' of life. Normally a person, unless he is sick, progresses toward maturity; and therefore if the contractant does not progress equally with his partner this would be a demonstration (always a posteriori) that the parties could not have grown together in the partnership and were affected with incapacity. Even a rather long common life, a high number of children, would be a clear proof that, in spite of their good will, the parties were incapable at the time of marriage of assuming the irrevocable partnership of the 'whole' of life."23
Then in his 1987, 1988, and 1989 addresses to the Rota, Pope John Paul II addressed the difficulties involved in cases of consensual incapacity based on psychological grounds, making it clear that many tribunals have arrived at a state of jurisprudence disarray. In 1987 and 1988 he stressed the need for applying the principles of Christian anthropology to marriage case procedures. "In this context," he said, "I would like to dedicate today particular attention to the psychic incapacities which, especially in some countries, have become the reason for an elevated number of declarations of the nullity of marriage."24 It is inescapable that the United States is one of those countries. In 1989 the secretary of the Signatura wrote specifically about United States tribunals when he said, "To hold simply that the extremely great majority of failed marriages (90%) are simply invalid marriages is to delude oneself about the modern reality."25
Especially in light of the papal addresses of 1987 and 1988, it is now transparently clear that United States jurisprudence principles on psychological incapacity are largely defective. When a tribunal has accepted this fact, the time has come for it to begin the difficult process of updating its principles and praxis in cases of psychological incapacity. To their great credit, the Canon Law Society of American in its Marriage Studies and The Jurist and the Canadian Canon Law Society in its Studio Canonica have been offering assistance by publishing material from the Roman tribunals which should make increasingly clear the great chasm between our jurisprudential praxis and authoritative Rotal jurisprudence.
While the evidence is clear enough, after almost three decades of contrary practice it will not be easy to assimilate this fact and it will take time to reduce it to practice without overreacting and falling into the opposite vice. As a long-term result, however, there will be a gradually deepening and spreading awareness in the tribunal and among the people it serves that a valid annulment based on psychological incapacity is indeed a rather extraordinary phenomenon.
There will be a three-fold practical result. First and most distressing, the tribunal will be giving fewer affirmative decisions on the ground of psychological incapacity than it gave in the recent past. Second, eventually fewer cases will be submitted to the tribunal and it will be accepting relatively fewer of the submitted cases. Third, more petitioners will be advised to abandon cases in progress which are extremely likely if not absolutely certain to receive negative decisions. Obviously, case-loads will decrease and truly quality time will be available for the cases which the tribunal will accept for trial.
In the short term, the staff of such tribunals will have to be ready for some rather intense difficulties with various professional interpersonal relationships. As one bishop put it to his repentant tribunal, "If you can take the flack, I'll stand behind you." Canon 1608, §3, which establishes freedom of conscience for judges in the evaluation of proofs, introduces a subjective element into the advocate's defense, the animadversions of the defender of the bond, and the definitive opinion of the judge. Individual members of a tribunal might disagree on the interpretation of law and jurisprudence. The same could happen between a diocesan bishop and his tribunal staff or between individual staff members, between one tribunal and other tribunals, and especially between a diocesan tribunal and its appellate court.
In spite of any difficulties, however, any tribunal wishing to be considered Catholic cannot do otherwise than accept the Roman magisterium and conscientiously follow its directives to the best of its ability. It must be said also that concern for the sacramentality and inviolability of marriage involves not only tribunal workers. This must be the concern of everyone involved in catechesis, in pastoral marriage preparation, and in counseling about whether a person should or should not present a marriage case to the tribunal as well as tribunal workers.
The Holy Father gives ample encouragement to tribunal workers and their paraprofessional collaborators. His words might serve as a commentary on the axiom, "The salvation of souls is the supreme law."26 Tribunals are dedicated to a "delicate service to the Church. . . in the search for the objective truth concerning the nullity or otherwise of a marriage in concrete cases," especially "in those marriage cases, of their nature very difficult, which have to do with the psychic incapacity of the contracting parties." Tribunals are therefore committed to "a defense of the Christian vision of human nature and of marriage" in "the search for truth, which should always be the foundation, mother, and law of justice."27
"The difficult task of the judge . . . is certainly a ministry of truth and charity in the Church and for the Church. 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 toward 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 in the case of the bankruptcy of marriage under the pretext of some psychic immaturity or weakness of the contractants.
"It is a service of charity also toward the parties, to whom, for the love of truth, it is necessary to deny declarations of nullity inasmuch as in this way they are helped not to deceive themselves about the true causes of the bankruptcy of their marriage and are preserved from the probable risk of again finding themselves in the same difficulties in a new union sought as a remedy for the first bankruptcy without having tried all the means for overcoming the obstacles experienced in their first valid marriage. And it is, finally, a ministry of charity toward the other pastoral ministries and organisms of the Church inasmuch as - with ecclesiastial tribunals refusing to be transformed into a facile way to solutions of bankrupt marriages and irregular situations between the spouses-it impedes a laziness in the formation of young people for marriage, an important condition for approaching the sacrament."28
1 Daniel Faltin, Rota decision, February 21, 1991, no. 12, in Monitor Ecclesiasticus, Vol. 117 (1992), p. 43.
2 Matt. 19:3.
3 Henry Wansbrough, O.S.B., "St. Matthew," A New Catholic Commentary on Holy Scripture, revised and updated July 1975, p. 937.
4 Lucien Anne, Rota decision, February 25, 1969, no. 19.
5 Lawrence Wrenn, "Processes," CLSA, The Code of Canon Law: A Text and Commentary, p. 1010.
6 Henry Ewers, Rota decision, April 4, 1982, no. 2, in Monitor Ecclesiasticus, Vol. 106 (1981), pp. 295-296
7 Valentine Peters, "Judges Must Judge Justly," The Jurist, Vol. 43 (1983), pp. 168, 178.
8 J. Filteau, "Church Courts Called Answer for Divorced-Remarried Catholics," Florida Catholic, January 3, 1986, p. 12.
9 Cf. Apostolic Tribunal of the Roman Rota, DECISIONES SEU SENTENTIAE selectae inter eas quae anno 1986 prodierunt cura eiusdem Apostolicae Tribunalis editae, published in 1991.
10 Address to the Rota, January 24, 1981, A, A. S., Vol. 73, p. 232, in Ewers, Rota decision April 4, 1982, no. 2, in Monitor Ecclesiasticus, Vol. 106 (1981), pp. 295-296; Egan, Rota decision, December 9, 1982, no. 3, in ibid., Vol. 108 (1983), pp. 234-235.
11 Canon 331. See also canons 360; 1405, §1.
12 Raymond Burke, "Serious Lack of Discretion of Judgment: a Residual or an Autonomous Ground of Nullity?" from a copy of the manuscript of the opening speech of the Twenty-Seventh Annual Convention of the Canadian Canon Law Society, October 19-22,1992, Toronto.
13 John Paul II, Allocution to the Roman Rota, January 29, 1992, no. 4.
14 Canon 1608, §1.
15 Kenneth Bocafola, Rota decision, December 13, 1989, no. 19, in Monitor Ecclesiasticus, Vol. 116 (1991), p. 400.
16 From symbiosis, the intimate living together of two dissimilar organisms in a mutually beneficial relationship.
17 Bocafola, cited decision, no. 15, p. 398.
18 Canon 1608, §3.
19 Matt. 19:3-12; cf. Matt. 5:31-32.
20 Wansbrough, op. cit., p. 938.
21 Const. Gaudium et spes, no. 48. Cf. Pius XI, encyc. Casti connubii in Denzinger, no. 2238.
22 CCEO canon 776, §2, the canon on the fundamental nature of marriage. Cf. CIC canon 1134, a canon in the chapter on the effects of marriage.
23 Mario Pompedda, Rota decision, October 10, 1986, ARRT, Dec., pp. 570-571.
24 1987 address, no. 1.
25 Xenon Grochelewski, "Alcuni questioni . . .," Monitor Ecclesiasticus, Vol. 104 (1989), p. 348.
26 Cf. canon 1752.
27 1988 address, nos. 1, 2, 3, 13.
28 1987 address, no. 9.
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. He has published several articles in HPR and The Jurist.
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