Office of Canonical Services

If the Church does not believe in divorce, how can they grant annulments?

Based on the words of Jesus in the Gospels of Mark (chapter 10) and Mathew (chapters 19 & 22), the Catholic Church has always taught and practiced that marriage – be it between two Catholics, or between two non-Catholics, or outside the Catholic Church, or in any religious tradition, or between people who have no belief in God – is a sacred covenant that lasts until the death of either spouse. Any time two people freely exchange informed consent without any type of impediment, their marriage is presumed to be valid and therefore indissoluble. Of course, the reality is that people divorce, for a variety of reasons.

 

A divorce is civil decree that terminates a marriage, essentially for any reason either or both of the spouses desires. A civil annulment is a judgment by a court that recognizes the invalidity of a marriage, and there are specific reasons and conditions for which it can be granted. The difference is that a divorce recognizes the validity of a marriage and means the two parties are no longer husband and wife; an annulment means that the individuals were never united in marriage as husband and wife; although the parties exchanged vows, the legal effect of binding the parties never happened. Grounds for a civil annulment include fraud, duress, bigamy, incompetence, and incapacity, among others.

 

A civil divorce is not recognized by the Catholic Church. This does not mean that the divorce did not happen (the final decree proves that it did), but that the marriage is still valid, albeit “over” in the sense that the parties are not going to reconcile. A divorce often deals with child and spousal support and the distribution of the couple’s possessions. Even though divorced, the Catholic Church views the individuals as still bound to one another and not free to marry anyone else. Until there is a declaration of nullity.

 

By the term ‘annulment’ the Church means a declaration of nullity of marriage, that is, the judgment of a court that recognizes a fact/truth: for some specific reason – a prior impediment, or a ‘defect’ of consent, or by not following some law of the Catholic Church – the individuals were not legally bound in marriage; though they exchanged consent it was not binding. The declaration of nullity does NOT “make” the marriage null; rather, it recognizes the truth that the marriage is invalid or null. This is similar to the declaration of the Church that a certain person is a saint: the Church does not “make” the person a saint or place the person in heaven, rather the Church recognizes the fact that the person is already in heaven.

 

Of course a declaration of nullity does not ‘erase’ a marriage or any children that might have been born to the parties. After a declaration of nullity the children do not disappear, nor do the years of life the parties spent together, nor do the memories of good times and bad times. All that was and is real; nothing gets erased.

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How can a marriage be invalid if consent was exchanged?

In the understanding of the Catholic Church, the spouses are the ministers of marriage, not the priest or official or religious minister who hears the vows and receives the consent of the parties. So if the spouses are the ministers of marriage, and their exchange of consent (vows) is what ‘makes’ the marriage, then the marriage can be invalid if their consent was invalid or ‘defective’ in some way. How is that possible? Marital consent has certain requirements in order that it be valid:

 

Consent must be freely given, not coerced or the result of pressure. The shotgun wedding is the stereotypical example of consent not freely given – almost anyone would say, “I do” in order to save his or her life. While most cases are not this extreme, there are instances where consent was exacted and not freely given: a person who consents because the other party threatened suicide, a person who consents in order to save face for the family, or a person who consents out of fear.

 

Marriage itself must be intended. A person might consent to marriage in order to become a citizen, to receive a higher military salary, to escape an abusive home environment, or simply to be a godparent at a baptism. If marriage is not the primary intention for exchanging vows, the consent may be invalid.

 

One cannot have the intention of entering any ‘kind’ marriage, but it must be an intention for marriage as the Catholic Church understands marriage. At the minimum that means marriage as permanent, not allowing for divorce; marriage as open to children; marriage as an exclusively faithful covenant that prohibits infidelity of any kind; and marriage with the understanding of one’s spouse as a partner and friend, deserving of equal dignity and respect. Some people consent to marriage on their terms, not the Church’s, and if they willfully intend something incompatible with the Church’s understanding of marriage, then the consent is invalid. One must consent to what the Church understands of marriage.

 

The person consenting must not only willfully intend what the Church teaches is marriage, but the person must be able to follow through and fulfill his or her word. Many people hope for a good marriage, but they are not capable of holding up their end. This could be due to grave immaturity, a psychological disorder, or a lack of the necessary interpersonal skills (ineffective communication, managing anger, conflict resolution). Even with the best of intentions, many people cannot fulfill the essential obligations of marriage.

 

The person consenting must be free of any serious psychological disorder that would inhibit his or her ability to fulfill the essential obligations of marriage. Not all psychological disorders are severe to have seriously disrupted marital life and one’s ability to keep the promises made when one gave consent.

 

To put it simplistically, it is the consent of the husband and wife at the time of marriage that makes the marriage either valid or invalid. An annulment in the Catholic Church is the process by which a court of judges investigates – through interviews and questionnaires – what each party intended and how capable each of them was to fulfill the promises they made.

 

Am I assured an annulment by merely applying?

No. Every marriage is presumed valid and binding until proven otherwise. The process of proving nullity is not to place blame, but to try to understand its root causes and determine whether it resulted from an incapacity for competent consent or any other impediment. If the testimony provided during an investigation is inconclusive or insufficient, a declaration of nullity cannot be issued and a negative decision is given. The grounds/reasons for invalid consent must be proven "beyond reasonable doubt."
 

If I am a Catholic, why do I need an annulment if I was only married civilly?

A Catholic must prove by documentation that he/she was a baptized Catholic at the time of the marriage and that the marriage took place outside of the Church. This is a shorter process, but still necessary to prove one's freedom to marry.

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My marriage was annulled civilly, do I have to have a Church annulment?

Yes. If a marriage took place, a Church annulment much be done. The ruling of the civil annulment may be helpful in proving reasons for a Church annulment, but it does not take the place of a Church annulment. 

 

I am not Catholic, why do I need to have a decree of nullity from the Catholic Church?

Every marriage, Catholic or not, is considered a valid union, and according to the teaching of Jesus and the Catholic Church, a marriage is a covenant "till death do us part", unless proven otherwise. The teaching of Jesus Christ is a divine law, meaning it applies to all people, regardless of belief, and to all marriages. Marriage is forever, regardless of your religion. You can have only one valid marriage at a time. A civil divorce does not terminate a valid marriage in the eyes of God, even if neither of the parties at the time of marriage was a Catholic.

 

If a divorced person, of any faith or even a non-believer, seeks marriage in the Catholic Church, the Church must investigate any prior marriage(s) to discern whether it was valid in accord with Catholic teaching. If it was not, it can be annulled and the persons involved are considered free to enter marriage again. If, however, the previous marriage(s) is deemed to have been valid, then in actuality the marriage still exists in the eyes of the Church and the persons involved are not free to remarry.

 

Every marriage – even when the parties are not Catholic – is presumed valid. The Catholic Church would never say, “Only marriages between Catholics are valid; therefore, only Catholics need an annulment.” A non-Catholic needs a declaration of nullity of marriage from the Catholic Church before he or she can remarry in the Catholic Church because the non-Catholic's marriage was presumably valid, and because the Church’s grounds (reasons) for invalidity are not all the same as the grounds in civil court, Moreover, the Church’s understanding of marriage as a sacred covenant (even between persons of no faith) is not shared with civil courts and other religions. A civil annulment does not suffice to declare a prior marriage invalid in the eyes of the Church, nor does an annulment granted by a handful of other religious denominations.

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Who are the people involved in an annulment?

The petitioner is the person who filled out the petition for an annulment, and the respondent is the ex-spouse. The petitioner calls into question the validity of the marriage, and it is the petitioner’s responsibility to bring forth proof that the marriage is null. An ecclesiastical advocate is one who has some basic knowledge of how the annulment process works and who helps the petitioner fill out the petition. The respondent also has an advocate who may be involved helping the respondent understand his or her rights in the annulment process. The judges are ones who have an advanced degree in Canon Law (the laws of the Catholic Church), and a judge may be a lay person or a priest. A tribunal is the Church court that deals with issues of Church law, and usually a tribunal of three judges makes the decision as to whether the annulment is affirmative (meaning the marriage is invalid) or negative (meaning the marriage is valid). The ecclesiastical notary is the official secretary for the marriage tribunal. The Defender of the Bond is the one who must argue in favor of the validity of the marriage. It is the Defender’s duty to put forth reasonable arguments that the marriage is valid.  Witnesses are named by both the petitioner and the respondent, and to the best of their ability they attest to the truth of what happened in the background of the parties, during the courtship, and throughout the marriage. An auditor is one who interviews the parties and/or witnesses in a case. The annulment process is taken as seriously as any court of civil law, and everyone’s full participation is expected.

 

How do I get an annulment started?

Contact your local parish priest, deacon or lay advocate to start the process. The parishes have the forms and your advocate must be actively involved in the process with you. The advocate will submit the petition to the tribunal.

 

What documents are needed?

In all cases, the tribunal will need a copy of your baptismal certificate (if applicable), the civil marriage license issued by the county where the marriage took place, and the final decree of dissolution or divorce issued by the civil court.

 

How long does it take? 

The time for processing varies from diocese to diocese.  Our time for a formal petition for a declaration of nullity is an average of two years.  Documentary cases, such as a determination of a defect of form, Ligamen, Pauline Privilege, can sometimes be resolved in much less time.

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How much does an annulment cost?

Since August 2014, the Diocese of San Bernardino has done away with all fees for any kind of annulment. This assures that petitions for an annulment are available to all people, including the poor. It also makes it evident that no one can buy an annulment (although that was not even possible in the past). 

 

Why does the tribunal have to contact my former spouse?

Church law requires that the rights of both parties be protected. This means that every legitimate effort be made to contact the former spouse and allow his/her participation in the Tribunal process. If a former spouse is truly unable to be located, the process will continue. There is no need for the parties to have direct contact with each other, only for the Tribunal to contact the Respondent.

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What are the civil effects of an annulment?

There are no civil effects to a declaration of nullity in the United States. It does not alter one’s moral and financial obligations toward the other party or one’s children. Nor does a declaration of nullity in any way affect the legitimacy of children born of the invalid marriage. The Church considers the children born of any presumably valid marriage, even if that marriage is subsequently found to be invalid, as fully legitimate.

 

If my marriage is declared null, are my children illegitimate?

No, of course not!    Our thanks to Rev. Michael Smith Foster, J.C.D. and his book, "Annulment: The Wedding that Was", Paulist Press, for the following explanation of a common question.

"When a marriage of parents is declared null by the Church, many people are confused about its impact upon the legitimacy of the children. In fact, a judicial sentence that declares the nullity of a marriage does not affect the legitimacy of children born of that union. Any statement or belief to the contrary is simply wrong.

 

"Tragically, it is a common misconception that a declaration of nullity renders children illegitimate in the eyes of the faith community. The laws of the Catholic Church clearly state that this is not the case. The misconception is derived from two perspectives:

 

"First, this harmful fallacy is derived from the use of the word annulment. Again, the word is inappropriate when discussing proceedings of nullity before a Church tribunal. In fact, the word annulment is not used in the law of the Church. Rather, a trial proceeding that declares the nullity of marriage is more aptly referred to by the phrase, 'declaration of nullity.'

 

"As stated earlier, the word annulment implies that you are taking 'something' and wiping it away. When this erroneous word is applied to a declaration of nullity, it signifies that the entire relationship between the spouses is wiped away or erased, including the legitimacy of children. This connotation underscores the inappropriateness of the word; nothing is 'erased.' In Church law a marriage that is declared null is thereafter referred to as a 'putative,' or 'supposed,' marriage. It was a marriage contracted in violation of an impediment, or with a condition or defective consent, but entered in good faith on the part of one or both of the contracting parties.

 

"Second, the misappropriation of the term illegitimate indicates a misunderstanding of legitimacy. Legitimacy is a term used by many legal systems throughout the world. The term indicates knowledge of a child's paternity. The maternity of a child (the Latin word for mother is mater) is usually obvious. The issue of the child's paternity (the Latin word for father is pater) can be less so. The term legitimacy connotes that a child's father is the husband of the child's mother at the time of conception or birth. In no way could a declaration of nullity deny a child's paternity. At the time of birth, the legally presumed relationship between the child's father and mother was indeed that of husband and wife. A declaration of nullity does not deny this, so the legitimacy of the child cannot be affected.

 

"Legitimacy is one of the first issues addressed to parties who are involved in tribunal procedures regarding marriage. The misconception is so pervasive that it needs to be corrected. Unfortunately, it is not uncommon for spouses who have obtained a civil divorce to continue ex-spousal hostilities in the post-divorce situation. These hostilities can surface in the parental relationship, and clearly the children suffer. There are few things more heart wrenching to tribunal officials than to discover that a child has been told by a parent that the Church is going to render him or her 'illegitimate' through the granting of a declaration of nullity. Informed parents who make such a statement have allowed anger at another adult to triumph over the well-being of the child.

 

"The Church promotes the dignity of children in many arenas, including its legal structures. It is imperative to state clearly and unambiguously that children born of a marriage that has been declared null remain legitimate. There is no room for misconceptions.

 

Can I receive the Sacraments if I am divorced?

You can receive the sacraments if you are divorced, as long as you are not living with someone and have not remarried before first having received a declaration of nullity by the Church for the previous marriage.

 

Can I receive the Sacraments if I am divorced and civilly remarried without a declaration of nullity?

No.

 

If I was married once in the Catholic Church, can I remarry in the Catholic Church?

Yes, if you have a declaration of nullity from the previous marriage.