DIVORCE AND REMARRIAGE
Part 2. Annulment of a Marriage
By John Hosie, S.M.
Divorce is one of the most tragic and soul-destroying experiences through which a married person can go. Over the past thirty years, divorce has become much more common among Catholics, who find their marriages suffering from the same social and economic pressures as the rest of the community. The attitude of the catholic Church towards divorce is well-known: it opposes it on Scriptural grounds, and because of the evident harm it causes to the Sacrament of Marriage, the partners, and their children. Father Hosie pleads for greater understanding of, and sympathy for fellow-Catholics who have suffered the trauma of marriage breakdown, on the part of the Catholic community.
We saw last month that marriage breakdowns have massive effects on those involved. Although many go through a time of hurt when they express doubts about ever remarrying the time may come when they change their minds, and would like to marry again.
In fact, in Australia, about 80 per cent of people whose marriages have ended do remarry. As with most general statistics, it does not seem that the figures for Catholics are much different from those of the general community.
Catholic church law (called Canon Law) permits a second marriage only if an annulment has been granted to the first marriage. This is required when a divorced Catholic wishes to remarry, or when a Catholic wishes to marry a person who has been married already. In the latter instance, in other words, divorced people who are not Catholics but wish to marry a Catholic may (and a number do) petition the Catholic marriage tribunal for a marriage annulment.
An annulment is a declaration by the church that what appeared to be a valid marriage was defective in some way regarded as essential for the nature of a true marriage. This declaration is made by a diocesan church body called the marriage tribunal.
There is an initial presumption that marriages which have taken place according to the rules are valid. Most Catholics are well aware that any marriage in the Catholic church is presumed by the church to be valid. However, sometimes Catholics express surprise to learn that the Catholic church has a similar presumption about the first marriages of people who are not Catholic, whether theirs was a church or a civil marriage.
But a moment's reflection shows that the Catholic church could take no other attitude: it would be insulting to other people to suggest that the only valid marriages are those of the Catholic church, and that married members of other churches, (or of people with no religion) are not truly married.
Two exceptions to this presumption of validity deserve mention: the church does not recognize a marriage when a Catholic was involved who was not obeying Catholic church law; nor does it recognize any marriage to a person who has been divorced and whose partner is still living. If a person (Catholic or not) who had been in such a marriage was divorced, the Catholic church would quickly recognize their freedom to remarry in a Catholic ceremony.
Suppose, for example that Mike, a Catholic wishes to marry Judy, a Presbyterian; but Judy has previously been married to Jim. If that first marriage of Judy and Jim took place in the registry office, and Jim was a Catholic - (and therefore not obeying church rules), or if Jim had been married previously, once the facts were established the Catholic church would quickly recognize that Judy is free to marry Mike.
Such instances aside, an annulment process is a lengthier business. But it should be mentioned that very many Catholics, and some priests, have mis-apprehensions about the grounds on which annulments are granted.
Some people do not apply for an annulment because they believe that they would be asked to declare that they "didn't really mean it" when they took their marriage vows. It must, in fact, be rare for a person to marry with this frame of mind, and it would be difficult to convince a tribunal that such was the case. I do not know anyone who married without wanting it to succeed.
A similar misunderstanding is revealed when you hear someone say, "How could I get an annulment? I have three children." Their ideas go back to the time when annulments were very rare, and non-consummation [not having had sexual intercourse was one of the few grounds people were aware of.
When considering whether they could gain an annulment in the Catholic church for a marriage which has ended in divorce, people should seek expert advice from someone familiar with current tribunal practice - not the hazy ideas of a friend, or even a priest not sure of current practice.
Not expected to know
It is also important to note that people are not expected to come to the tribunal already knowing and able to state the grounds on which they hope to get an annulment. These grounds have technical names and, in any event, there might be two or even three possible lines on which a case might proceed, depending on the available evidence. They are invited to come to the tribunal without knowing whether they have grounds or not, or what the grounds might be, and are very welcome.
Some people say that they do not want to seek an annulment because it would mean declaring that "There was no marriage at all". This phrase can be misleading and is not very helpful. People say: "I have four children to prove there was one". They need to know that a decree of nullity declares that the marriage was not valid because something was lacking which ought to be present in a marriage. It does not question the legitimacy of children of the marriage. "The marriage was invalid," is accurate. and less disturbing.
When they hear that the annulment process requires applicants to take a very close look at their own life and the marriage, many people say, "But that would be very painful". They are right: it is painful. But all people whose marriages have failed need to make an "agonizing reappraisal", to use a famous phrase - whether they do it or not (and most do not), and whether they seek an annulment or not. They need to look deeply at their life and marriage, even though it is painful to do so.
This is a pain which cannot be avoided. The price of not doing so is likely to be a failed second marriage. An annulment process is one way in which this reappraisal can be made.
The grounds on which the church grants annulments were extended considerably some years ago to include psychological causes.
A simple example will perhaps best reveal the contrast between past and present tribunal practice. Suppose that two Catholics were married in a Catholic ceremony, and even though they had a child or two, it became clear that one was homosexual: they separated and were divorced. For many years until relatively recently, no annulment would have been granted by the Catholic church: the marriage was seen as sacramental and consummated.
But today, the tribunal would accept the case: it would be argued that a homosexual person does not have the capacity to commit himself or herself to marriage which is, of its nature, a heterosexual state of life: an annulment could be granted.
Another obvious example is what we usually call immaturity; its technical name as a ground for annulment is "lack of due discretion". Civil laws in all countries declare that persons under a certain age are not able to marry validly. lf a girl of fifteen in Australia went through a marriage ceremony successfully pretending to be eighteen, a civil annulment could be granted - an annulment, not a divorce.
Australian law recognizes that persons of eighteen may legally marry without parental permission. But some of us are well aware that when we were eighteen, we were still very immature, to the degree that we would have been unready to take on the responsibilities of marriage. Immaturity is a rather vague term and all of us are immature in some ways, but in some people this serious lack of maturity may persist for years. If a divorced person can establish to the marriage tribunal that when the marriage took place, one or other was seriously immature in the sense described, an annulment of the marriage could be granted.
Another obvious example is what we usually call immaturity; its technical name as a ground for annulment is "lack of due discretion". Civil laws in all countries declare that persons under a certain age are not able to marry validly. If a girl of fifteen in Australia went through a marriage ceremony successfully pretending to be eighteen, a civil annulment could be granted - an annulment, not a divorce.
Australian law recognises that persons of eighteen may legally marry without parental permission.. But some of us are well aware that when we were eighteen, we were still very immature, to the degree that we would have been unready to take on the responsibilities of marriage. Immaturity is a rather vague term and all of us are immature in some ways, but in some people this serious lack of maturity may persist for years. If a divorced person can establish to the marriage tribunal that when the marriage took place, one or other was seriously immature in the sense described, an annulment of the marriage could be granted.
There are other grounds relating to the capacity of a person to undertake the responsibilities of marriage. Some people seem to be continually incapable of being faithful to their spouses; such marriages lack the necessary qualities of trust and fidelity. Some seem quite irresponsible in a range of ways as spouses, almost acting as if still single, and irresponsible as parents.
Other individuals, although married, may remain in such a state of emotional dependence upon parents that they fail regarding one of the qualities of marriage mentioned earliest in scripture: "This is why man leaves father and mother and joins himself to his wife" (Genesis 2:24).
Psychological characteristics which are revealed by addiction, such as to alcohol, drugs or gambling, are other instances which would be very relevant to a petition for nullity.
A person whose marriage began only because the woman was pregnant and they wanted to give the baby a name, would also have possible grounds for a nullity petition.
These instances are not at all a full list of grounds, but only examples. A number of other grounds might also be pursued, and result in a successful application.
It should be noted that in Australia a petition to the tribunal can only begin after a divorce has been granted. and outstanding court actions completed (e.g. disputes over custody of children, or the property settlement).
When a person considering seeking an annulment has discussed the matter with someone who is familiar with tribunal practice, and decides to proceed, two major steps follow.
First a lengthy interview will be arranged with a tribunal representative. This is a private meeting: no kind of court appearance is required either by the petitioner or any witnesses. The case proceeds entirely by written statements, prepared in the presence of a single interviewer. During the first interview, a lengthy statement is put together about the marriage, and the backgrounds of the two former spouses. The interviewer may help in the preparation of this statement, which is the basis of the case.
The second step is that the practitioner is asked to name people ("witnesses") who would be prepared to be interviewed. These may include parents, close relatives and friends. lf the former spouse is prepared to be interviewed, the progress of the case is likely to be easier. The witnesses are then invited to get in touch with the tribunal to be interviewed.
When witnesses have been interviewed, the grounds on which the case will proceed to judgement will be finally chosen on the basis of the petitioner's lengthy statement and the evidence of the witnesses. The grounds may primarily relate to the petitioner or to the former spouse, or may concern both as regards each other.
At a late stage, the petitioner is contacted again briefly to approve and sign the necessary application, and the case proceeds to judgement. If the judgement is favourable, it proceeds to a national tribunal, and following on that body's approval, the annulment is granted.
Not many petitions are actually refused; those which are not progressing usually drop out. They may be taken up again later if, for example, a witness becomes available. If refused, an appeal is possible, though not easy.
The petitioner is asked to contribute towards the cost of the process: the sum is usually comparable to the cost of a civil divorce petition. However, if people are in difficult financial circumstances, cases proceed even though they may be able to afford only part of the cost - or none at all.
Unfortunately, annulments take a good deal of time. Australian cases usually aim at being completed in eighteen months, but many take several years. This differs from a number of tribunals in the United States which average six months for cases - and some take less time.
We noted above, however, that 80 per cent of divorced people remarry.
What are the issues facing these people?
Don't miss Part 3.
Part 2 Annulment of a Marriage
Part 3 Remarriage
Part 5 Can a Marriage Die?
Part 6 Jesus and Divorce
From "ANNALS AUSTRALASIA" June 1990
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