Declaration of nullity

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In the Catholic Church, a declaration of nullity, commonly called an annulment and less commonly a decree of nullity, [1] is a judgment on the part of an ecclesiastical tribunal determining that a marriage was invalidly contracted or, less frequently, a judgment determining that ordination was invalidly conferred.

A matrimonial nullity trial, [2] governed by canon law, is a judicial process whereby a canonical tribunal determines whether the marriage was void at its inception (ab initio). A "Declaration of Nullity" is not the dissolution of an existing marriage (as is a dispensation from a marriage ratum sed non consummatum and an "annulment" in civil law), but rather a determination that consent was never validly exchanged due to a failure to meet the requirements to enter validly into matrimony and thus a marriage never existed. [3]

The Catholic Church teaches that, in a true marriage, one man and one woman become "one flesh" before the eyes of God. [4] Various impediments can render a person unable to validly contract a marriage. Besides impediments, marriage consent can be rendered null due to invalidating factors such as simulation or deceit, or to psychological incapacity.

For this reason (or for other reasons that render the marriage null and void) the Church, after an examination of the situation by the competent ecclesiastical tribunal, can declare the nullity of a marriage, i.e., that the marriage never existed. In this case the contracting parties are free to marry, provided the natural obligations of a previous union are discharged.

In 2015, the process for declaring matrimonial nullity was amended by the matrimonial nullity trial reforms of Pope Francis, the broadest reforms to matrimonial nullity law in 300 years. [6] Prior to the reforms, a declaration of nullity could only be effective if it had been so declared by two tribunals at different levels of jurisdiction. If the lower courts (First and Second Instance) were not in agreement, the case went automatically to the Roman Rota for final decision one way or another.

Reasons for nullity

Certain conditions are necessary for the marriage contract to be valid in canon law. Lack of any of these conditions makes a marriage invalid and constitutes legal grounds for a declaration of nullity. Accordingly, apart from the question of diriment impediments dealt with below, there is a fourfold classification of contractual defects: defect of form, defect of contract, defect of willingness, defect of capacity. For annulment, proof is required of the existence of one of these defects, since canon law presumes all marriages are valid until proven otherwise. [7]

Lack of canonical form

Members of the Catholic Church are required to marry in front of a priest (or deacon), and normally with at least one other witness, which can be a layperson. The priest or deacon is not the minister of the sacrament; the husband and wife are the ministers by exchanging vows, though the cleric presides over the exchange of the vows and any Mass or nuptial liturgical celebration (CCC 1630). If one of the parties is Catholic, but there is a serious reason why the marriage should be celebrated in front of a civil servant or a non-Catholic minister, a dispensation can be granted. If no dispensation was granted and the couple did not observe this law, the marriage is considered invalid. Because the nullity of the marriage is clear from the circumstances there is no need for a canonical process to issue a Declaration of Nullity. The correction of this invalidity requires the couple to exchange their consent according to canonical form (commonly called "convalidation").

Impediments

If one of the parties were prohibited from marrying by a diriment impediment (from the Latin for "interrupting"), the marriage is invalid. Because these impediments may not be known at all, the marriage is called a putative marriage if at least one of the parties married in good faith.

Diriment impediments include:

Some of these laws can be relaxed by a dispensation before the ceremony. For example, Catherine of Aragon and Henry VIII of England received a dispensation from the impediment of affinity (Catherine had previously been married to Henry's brother Arthur, who died). Henry later based his request for annulment from Catherine (which largely led to the reformation of the Church of England) on the grounds that the dispensation was improperly given in that his father, Henry VII, had pressured the Archbishop of Canterbury into granting the dispensation.

The correction of this invalidity after the marriage requires first that the impediment has ceased or has been dispensed, and then a "convalidation" can take place or a sanatio in radice can be granted to make the marriage valid.

Grounds for nullity

A marriage may be declared invalid because at least one of the two parties was not free to consent to the marriage or did not fully commit to the marriage.

Grounds for nullity include:

According to Canon 1095 a marriage can be declared null only when consent was given in the presence of some grave lack of discretionary judgment regarding the essential rights and obligations of marriage, or of some real incapacity to assume these essential obligations. Pope Benedict XVI in his address to the Roman Rota in 2009, [20] echoing words of his predecessor John Paul II, has criticized "the exaggerated and almost automatic multiplication of declarations of nullity of marriage in cases of the failure of marriage on the pretext of some immaturity or psychic weakness on the part of the contracting parties". Calling for "the reaffirmation of the innate human capacity for matrimony", he insisted on the point made in 1987 by John Paul II that "only incapacity and not difficulty in giving consent invalidates a marriage". [21]

Process

Marriages declared null under the Catholic Church are considered as void ab initio, meaning that the marriage was invalid from the beginning. Some worry that their children will be considered illegitimate if they get an annulment. However, Canon 1137 of the 1983 Code of Canon Law specifically affirms the legitimacy of children born in both valid and putative marriages (objectively invalid, though at least one party celebrated in good faith). Critics point to this as additional evidence that a Catholic annulment is similar to divorce; although civil laws regard the offspring of all marriages as legitimate.

However, there are some significant differences between divorce and annulment. Divorce is concerned merely with the legal effects of marriage. Annulment, however, is also concerned with the reality of whether or not a true marriage was ever formed. This leads to the second difference. At least in most countries, divorce is always possible. However, not all applications for marriage nullity are granted.

An annulment from the Catholic Church is independent from obtaining a civil annulment (or, in some cases, a divorce). Although, before beginning an annulment process before an ecclesiastical tribunal, it has to be clear that the marriage cannot be rebuilt. Some countries, such as Italy, allow the annulment process to substitute for the civil act of divorce. In many jurisdictions, some of the grounds the Catholic Church recognizes as sufficient for annulment are not considered grounds for a civil annulment. In such cases, the couple will often need to be divorced by the civil authorities to be able to remarry in the jurisdiction. Once the Church annuls a marriage it would generally prefer that the marriage be subsequently annulled by the civil courts. However, should this not prove feasible, a civil divorce is acceptable.

If someone has been married previously and the first spouse is still alive, he or she must have received a Declaration of Nullity before entering into a marriage in the Catholic Church, even if neither party in the marriage was Catholic (privilege of faith being separate cases). The Catholic Church treats as indissoluble and valid every marriage when it is the first marriage for both parties. However, the church does not recognise as valid a marriage when one of the parties is Catholic but the marriage was not celebrated before a Catholic priest (unless a dispensation was first obtained).

Canon law presumes that all marriages are valid until proven otherwise. [22] Annulment respondents who want to use canon law to defend their marriage against declarations of invalidity have the right to have a competent advocate assisting them. An advocate is like a lawyer. Respondents have the right to read the petition (called libellus, meaning "little book") of the petitioner. The petition must describe, in a general way, the facts and proofs that the petitioner is using as the basis for alleging that parties' marriage is invalid. It is necessary that tribunal judges study the jurisprudence of the Roman Rota, since the rota is responsible to promote the unity of jurisprudence and, through its own sentences, to be of assistance to lower tribunals (Dignitas Connubii, art. 35, citing Pastor bonus , art.126). Annulment respondents can use case law from the Roman Rota to support their defense of marriage.

In order to obtain a declaration of nullity, the parties must approach a Catholic diocesan tribunal. Most applications for nullity that are heard by the tribunal are granted because one or both of the parties are judged to have given invalid consent. In order to give valid consent, the parties must give it freely. They must have a basic understanding of what they are doing and have given some thought and evaluation to their decision to enter marriage (1983 CIC, Canon 1095). They must be capable of fulfilling the promises they make on the wedding day; that is, not suffer from any psychological infirmity (Canon 1095) that will prevent them from giving themselves in a partnership of the whole of life that has as its ends the good of the spouses and the procreation and education of children (canon 1055). They must intend the words that they speak on the wedding day; that is, intend to form a permanent and faithful partnership, open to sexual acts that are procreative (canon 1101). Serious failures in these areas can allow a possible successful application for marriage nullity. There are other reasons that might justify an allegation of invalid consent, such as a serious error concerning the person to whom marriage promises are made (Canon 1097), one party being seriously deceived by the other at the time of the wedding (Canon 1098) or one of the parties being subjected to force or grave fear without which the marriage would not be occurring (Canon 1103).

Church tribunals are courts. As with any court,[ dubious ] the person bringing the matter before the judges must prove his or her case; advocates and Tribunals will advise applicants as to how they can present the evidence necessary to prove a case.
An affirmative decision is granted when the majority of Judges reaches the "Moral certainty" that the petitioner proved his case. Moral certainty cannot exist if, objectively speaking, there are probable indications of the contrary in a case, and it differs from other standard of decision (i.e. "beyond reasonable doubt").

Approximately 94% of petitions filed in the United States are granted, and although the United States has only 6% of the world's Catholics, it accounts for 60% of the annulments granted worldwide, [23] leading Bai MacFarlane to suggest that the Church cooperates with the "evil of no-fault divorce". Pope John Paul II expressed concern over the relative ease with which an annulment can be obtained in the United States. [24] The tribunal judges are tasked with distinguishing those unions that were flawed from the outset from those valid marriages that have broken down.[ citation needed ]

Numbers

Worldwide, diocesan tribunals completed over 49,000 cases for nullity of marriage in 2006. Over the past 30 years about 55 to 70% of annulments have occurred in the United States. The growth in annulments has been substantial; in the United States, 27,000 marriages were declared null in 2006, compared to 338 in 1968. [25]

Other considerations

Pope John Paul II and Pope Benedict XVI were worried about the ease with which annulments were being granted, especially when premised on ill-defined grounds such as "immaturity or psychic weakness" or "psychic immaturity", [26] an expression of concern that the term "annulment" is being regarded as synonymous with "divorce".

Pope Francis expressed worries over the fact that probably "half of all marriages are null" [27] in the light of canon law. This observation was one of the reasons for calling an extraordinary synod of bishops on the family in October 2014. [28] Pope Francis later reformed the matrimonial nullity trial process in 2015.

A declaration of nullity made by the Catholic Church is distinct from a civil divorce. A civil divorce may serve as proof for the ecclesiastical tribunal that the marriage cannot be rebuilt. In some countries, such as Italy, in which Catholic Church marriages are automatically transcribed to the civil records, a Church declaration of nullity may be granted the exequatur and treated as the equivalent of a civil divorce.

Catholic view of Eastern Orthodox process

Annulments granted by Eastern Orthodox tribunals

The Code of Canons of the Eastern Churches (CCEO), the body of Oriental canon law for the Eastern Catholic Churches, in Canon 780 follows the Second Vatican Council's teaching that the tribunals of the Eastern Orthodox Churches have a valid annulment process to declare a marriage null. [29] [ dubious ] If an Orthodox tribunal holds that the marriage was invalid from its inception, that decision would be accepted by a marriage tribunal in the Catholic Church.[ dubious ]

Eastern Orthodox economy

Some of the Eastern Orthodox Churches allow a second or third marriage in oikonomia ("economy"), which is not permitted in the Catholic Church. This concept states that the first marriage was valid and the second is allowed in the economy of salvation. The Catholic Church would see this as contrary to divine law and therefore invalid. The same impediment would exist as with divorce or "dissolution" of a bond (annulment) that is not in the favor of the faith. [30]

Declaration of nullity of ordination

The term "declaration of nullity" can also apply to cases in which ordinations are invalidly conferred. [31]

Notable Catholic annulments

Recent controversies regarding the granting of annulments in Catholicism

Popes Benedict XVI and John Paul II criticized the Catholic Church on the issue of the overuse of annulments to marriage, [33] [34] but Francis made changes to canon law to make it easier to get annulments. [35] He also asked dioceses to charge no fees for annulments "insofar as possible." [36]

See also

Related Research Articles

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An ecclesiastical court, also called court Christian or court spiritual, is any of certain courts having jurisdiction mainly in spiritual or religious matters. In the Middle Ages these courts had much wider powers in many areas of Europe than before the development of nation states. They were experts in interpreting canon law, a basis of which was the Corpus Juris Civilis of Justinian which is considered the source of the civil law legal tradition.

Marriage in the Catholic Church

Marriage in the Catholic Church, also called matrimony, is the "covenant by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring", and which "has been raised by Christ the Lord to the dignity of a sacrament between the baptised." Catholic matrimonial law, based on Roman law regarding its focus on marriage as a free mutual agreement or contract, became the basis for the marriage law of all European countries, at least up to the Reformation.

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In the canon law of the Catholic Church, a distinction is made between the internal forum, where an act of governance is made without publicity, and the external forum, where the act is public and verifiable. In canon law, internal forum, the realm of conscience, is contrasted with the external or outward forum; thus, a marriage might be null and void in the internal forum, but binding outwardly, i.e., in the external forum, for want of judicial proof to the contrary.

Apostolic Signatura tribunal of the Roman Curia

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In the jurisprudence of the canon law of the Catholic Church, a dispensation is the exemption from the immediate obligation of law in certain cases. Its object is to modify the hardship often arising from the rigorous application of general laws to particular cases, and its essence is to preserve the law by suspending its operation in such cases.

Defender of the bond official in Catholic matrimonial causes

The defender of the bond is a Catholic Church official whose duty is to defend the marriage bond in the procedure prescribed for the hearing of matrimonial causes which involve the validity or nullity of a marriage already contracted.

A putative marriage is an apparently valid marriage, entered into in good faith on the part of at least one of the partners, but that is legally invalid due to a technical impediment, such as a preexistent marriage on the part of one of the partners. Unlike someone in a common-law, statutory, or ceremonial marriage, a putative spouse is not legally married. Instead, a putative spouse believes himself or herself to be married in good faith and is given legal rights as a result of this person's reliance upon this good-faith belief.

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In law, a declaration is an authoritative establishment of fact. Declarations take various forms in different legal systems.

In the canon law of the Catholic Church, an impediment is a legal obstacle that prevents a sacrament from being performed validly and/or licitly. The term is used most frequently in relationship to the sacraments of Marriage and Holy Orders. Some canonical impediments can be dispensed by the competent authority as defined in Canon Law.

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In the canon law of the Catholic Church, a vetitum is a prohibition, in the form of a precept, imposed by an ecclesiastical judge on a particular individual, in connection with declaring the nullity of marriage, that prevents him or her from contracting another marriage, at least until the cause of the nullity of the first marriage has ceased. A vetitum prohibits marriage in the Catholic Church until the prohibition is removed.

The term ratum sed non consummatum or ratum et non consummatum refers to a juridical-sacramental category of marriage in Catholic matrimonial canon law. If a matrimonial celebration takes place (ratification) but the spouses have not yet engaged in intercourse (consummation), then the marriage is said to be a marriage ratum sed non consummatum. The Tribunal of the Roman Rota has exclusive competence to dispense from marriages ratum sed non consummatum, which can only be granted for a "just reason". This process should not be confused with the process for declaring the nullity of marriage, which is treated of in a separate title of the 1983 Code of Canon Law.

The matrimonial nullity trial reforms of Pope Francis are the reforms of Catholic canon law governing such trials, made public 8 September 2015. The reforms were effected by two separate apostolic letters from Pope Francis, the motu proprio Mitis iudex dominus Iesus amending the 1983 Code of Canon Law, and the motu proprio Mitis et misericors Iesus amending the Code of Canons of the Eastern Churches. This was in response to the Bishops who, during the Synod on the Family of 5-9 October 2014, called for simplification of the procedure whereby a legally invalid marriage is declared null.

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Bigamy, according to the strict meaning, signifies the marrying of a second wife after the death of the first, in contradistinction to polygamy, which is having two simultaneous wives. The present usage in criminal law of applying the term bigamy to that which is more strictly called polygamy is, according to Blackstone a corruption of the true meaning of bigamy. Canonically viewed, bigamy denotes (a) the condition of a man married to two real or interpretative wives in succession, and as a consequence (b) his unfitness to receive, or exercise after reception, tonsure, minor and sacred orders. This unfitness gives rise to an irregularity which is an impediment "impediment" and "not diriment", hence orders conferred in violation of it are valid but illicit. This irregularity is not a punishment, medicinal nor punitive, as there is no sin nor fault of any kind in a man marrying a second wife after the death of his first, or a third after the death of his second; it is a bar against his receiving or exercising any ecclesiastical order or dignity.

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References

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