Annulment (Catholic Church) - Process

Process

Marriages annulled under the Catholic Church are considered as 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 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 a 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 re-marry 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 get 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 minister (unless a dispensation was first obtained).

Canon law presumes all marriages are valid until proven otherwise (Canon 1060). 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. Roman Rota decisions are available at Msgr. Cormac Burke's website.

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 (canon 1095, Code of canon law 1983). 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 well-being of the parties 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, the person bringing the matter before the judges must prove his or her case. Tribunals will advise applicants as to how they can present the evidence necessary to prove a case. Of course, not every application is successful. The tribunal judges always have the difficult task of distinguishing those unions that were flawed from the outset from those valid marriages that have broken down.