Fr John Flader: Does the Church approve of divorce?

01 Oct 2008

By The Record

Could you please explain what an “annulment” of a marriage is? Isn’t it just the same as the Church approving of a divorce?

Fr John Flader

Many people ask this question, some of them bewildered on hearing of annulments being granted of marriages they thought were certainly valid. I will try to address the principal issues.
First of all, the word “annulment” itself can be misleading. It seems to suggest that the Church is annulling, or making null, a valid marriage, much as the state does when granting a divorce. This is not what an annulment is. Rather, the Church is declaring that the marriage bond never existed, that the marriage was null from the outset, for any number of reasons.
It would be helpful to trace the process that leads to a declaration of nullity.
It begins with a couple, who have been seemingly validly married in the eyes of the Church, experiencing difficulties in the marriage, with the marriage eventually breaking down and a civil divorce being granted. At least one of the spouses then approaches someone from the marriage tribunal to see if there is any chance of the marriage being declared null.
There are numerous possible grounds for nullity. For example, Canon 1095 of the Code of Canon Law says that the following are incapable of contracting marriage: “those who lack sufficient use of reason; those who suffer from a grave lack of discretion or judgment concerning the essential matrimonial rights and obligations to be mutually given and accepted; those who, because of causes of a psychological nature, are unable to assume the essential obligations of marriage.” A good number of annulments are granted on one or another of these grounds.
Other possible grounds are deceit concerning some important quality of the person, perpetrated in order to secure consent (Can. 1098); the positive exclusion of marriage itself or of any essential property of marriage (Can. 1101); force or grave fear (Can. 1103), etc.
If the person from the tribunal considers that there are sufficient grounds to proceed, the person seeking the annulment is asked to write a statement concerning the essential facts of the history of the marriage and to provide the names of persons who knew the couple, especially at the time of the marriage, who can be interviewed. If these persons now live in another city or country, they can be interviewed by someone from the tribunal of the place where they live.
The persons to be interviewed may include not only friends and relatives but, in some cases, doctors, psychologists, psychiatrists or other relevant specialists.
When all the documentation has been gathered, someone from the tribunal with expertise in canon law summarises the facts of the case and the possible grounds for nullity. This documentation is presented to the Defender of the Bond, a person with expertise in canon law, whose role it is to present all the arguments in favour of the validity of the marriage in the particular case.
Finally the matter is brought to judgment by the tribunal.
The judges’ role is not to find some way of declaring the marriage null, but rather to judge honestly whether, in light of the facts and the relevant law, the marriage was in fact null.
Always, the presumption is in favour of the validity of the marriage, following Canon 1060: “Marriage enjoys the favour of law. Consequently, in doubt the validity of a marriage must be upheld until the contrary is proven.”
If the tribunal comes to an affirmative decision regarding the nullity of the marriage, the judgment and the documentation are forwarded to the National Tribunal of Second Instance, where the matter is judged again.
Only when there are two concurring judgments is the marriage finally declared null. The spouses are then informed of the judgment and, unless there are special circumstances, they are free to marry again in the Church.
As is clear, the process is very thorough and is handled by persons with expertise in the matter.
If everyone cooperates promptly, the whole process should take no longer than a year for the first judgment and another six months for the second instance judgment.
If occasionally people are surprised by an annulment being granted for a marriage that in their opinion was certainly valid, they should make no judgment.
There can be factors unknown to them which, when judged calmly by the tribunal with all the facts before them, render the marriage certainly null.
As is clear, a declaration of nullity is not the same as the Church approving of a divorce.