Easier annulments may not be the answer for divorced Catholics

At the October 2014 Synod of Bishops on the family, the bishops of the world grappled with the question of readmitting divorced and remarried Catholics to Communion.

Some, like Cardinal Walter Kasper, pointed to the approach taken by the Orthodox churches, where divorced people can marry in a civil ceremony and be admitted to Communion after they have gone through a penitential process.

Others felt that the Western practice of annulments could solve the problem if it was simplified and made easier.

To get a better understanding of annulments and how the process might be simplified, I interviewed Fr. John Beal, professor of canon law at The Catholic University of America. He has written extensively about the annulment process.

NCR: What's an annulment?

Beal: An annulment is a declaration by a church authority (usually a church tribunal) that declares that a marriage was fundamentally flawed from the very beginning.

We're most familiar with annulments in the church because it's our only way of dealing with the divorced and remarried in the present dispensation. Every civil jurisdiction in this country has the possibility of annulling marriages, but in the era of no-fault divorce, recourse to the annulments in the civil courts is relatively rare.

What would be grounds for an annulment in the Catholic church?

There are three basic reasons why a marriage involving a Catholic may be fundamentally flawed from the start.

The first and simplest is that the Catholic failed to observe the canonical form. In other words, he or she was not married before an authorized Catholic church minister and two witnesses.

The second is that there was some impediment recognized by church law. For example, if you or I were to go through a marriage ceremony, the marriage would be invalid because of the impediment of sacred orders. Another impediment is consanguinity affinity -- too close a relationship, either through blood, marriage or adoption. And there is an impediment that shows up in "Hamlet" with Claudius and Gertrude, where someone kills the spouse of another in order to marry that person.

The third ground for an annulment is that there was some defect of consent. There are a number of defects of consent that are recognized in church law.

One is what's called "force and fear," where someone was subjected to pressure or force from outside that they could only get rid of by going through a marriage. We have the colloquial expression "shotgun marriage" to express the notion.

A second is fraud, where someone concealed some important quality about themselves from the other for the sake of getting them to marry them, which they would not have done had they known about the presence or absence of this quality.

The third is what's called simulation, where someone goes through a marriage ceremony while not really intending to be married at all or to be married in a sense that the church considers contradictory to the very notion of marriage.

For example, excluding an openness to children, excluding the indissolubility of marriage or excluding fidelity. Or excluding marriage itself. The classic case of that is the green card marriage, where someone goes through a marriage ceremony solely for the purpose of normalizing the immigration status.

Then there is what's called incapacity of consent because of psychological disorder or disturbance.

Could you talk a little bit about how the process for getting an annulment works today?

Well, it depends on what the presenting issue is. If it's a question of lack of form, it's a very simple process: Someone simply proves by baptismal certificate that they were bound by the form and by a civil document that they did not observe it, and the thing can be taken care of in a matter of hours.

The ones that are difficult -- the ones that people are mostly focused on -- are those that involve defects of consent. They involve a canonical judicial process, or trial, where the one who is seeking the annulment submits a petition to the tribunal. Personnel, judges, defender of the bond are assigned to the case.

After citing the other party and offering him or her an opportunity to participate, they then set out the proposed grounds for the annulment, and the judge goes out and gathers the evidence from the parties themselves, if they are willing to do so, and from witnesses who have been suggested by either of them.

Depending on the nature of the grounds, they may have an evaluation by a mental health professional.

Then the judge puts it all together and invites the parties to come and look at the evidence that has been gathered, if they want to do so, and move ahead to a discussion of the case through written arguments by advocates and a defender of the bond. This leads ultimately to a decision by the tribunal.

After the initial decision, if it is affirmative -- if it declares the marriage invalid -- there is a process at a higher tribunal to confirm or not that decision.

It's a fairly complicated process.

Is it common for one of the spouses to object the annulment or to challenge it?

I would guess that probably in 75 percent of the cases that are decided in American tribunals, the former spouse (the one we call "the respondent") is nonparticipating. They are indifferent to the whole thing. Then there's about 10 percent where the respondent is equally eager for a happy outcome, and the other 15 percent is actively contesting it. That would be my guess.

On the other hand, it's important to remember that although the declarations of nullity by church tribunals are purely religious matters in the United States and Canada, there are countries -- most notably Italy, but also some others in Europe and Latin America -- where the decisions of ecclesiastical tribunals have civil effects. A person in Italy who wants to be free from their civil bond of marriage has the option of getting a divorce or going through the church's annulment process, and that has the same civil effect.

However, in Italy, if you get an annulment, your obligation for spousal support, or what we used to call "alimony," is considerably less than if you got a divorce. So the civil implications of an annulment can be quite serious and cause financial hardship for the other party.

So we have to remember that in trying to simplify the procedure, we have to be careful about issues of justice that we don't have to worry about in the United States. Although if an Italian national were to be subject to one of our annulment procedures, it would have effect in Italy.

Also, we have to remember that the Vatican has already run afoul of the European Court of Human Rights on at least one occasion because of failure to honor the rights of a respondent in annulment case that was decided before the Roman Rota (Pellegrini v. Italy, 2001).

So any talk about simplifying things has to take into account something more than what we Americans usually think of.

In the United States, some simplification already took place in what were called "the American procedures." Could you explain what they were and what impact they had?

In 1970, the Canon Law Society of America worked with the bishops' conference to have some simplified procedural norms for marriage annulment cases in the United States. They were approved by the Vatican for use in the United States for an experimental period that eventually extended from 1970 to 1983, when the revised Code of Canon Law went into effect.

In 1983, these American procedural norms were terminated except to the extent that provisions of them were incorporated into the revised code.

What was not incorporated into the 1983 code?

The American procedural norms allowed a dispensation from the obligation for a second process to review and confirm a favorable decision in nullity cases at the first tribunal. It was sold to the Vatican with the idea that this would be used only very rarely and for cases that were completely open-and-shut.

The Vatican approved this, but what happened was by 1973, at least 90 percent of all affirmative decisions given in the United States were being dispensed from any review at a higher level. Therefore, almost all of them were able to be acted on after only one decision.

The revised code eliminated that possibility and required a review by the appellate court, and that has been a source, in some places at least, of considerable delays in this country in the processing of cases. A lot of people would like to see that changed so that we would not have to have a second process after an affirmative decision is given, unless one of the parties formally appeals the decision.

How often does the second court actually disagree with the original decision?

That's difficult for me to say, but my sense is that it's relatively rare that the appellate courts in this country do anything more than simply rubber-stamp the decision of the first instance tribunal. It is a cause in this country of some delay, depending on the appellate court. Staffing appellate courts is difficult.

When you say some delay, are you saying weeks? Months? Years?

Months, usually. In some cases, I guess it's running six months to a year to get an appellate decision. Now, I don't have any documentary evidence. It's just what I hear from practitioners.

Are there things that can be done to speed up the process?

American tribunals have done a lot of creative things. For example, the code expects that most parties and witnesses will be called to the tribunal office and interviewed face-to-face by a judge or his delegate and that their testimony will be transcribed.

That's a fairly time-consuming process, and many, if not most, American tribunals finesse that by offering people the possibility of submitting what we might call affidavits, or something even less formal in response to a questionnaire in writing. That saves a lot of time and energy.

We use telephones, and I suspect we have now moved to Skype for dealing with people, which is not foreseen in the code. We chop off a lot of formalities like taking oaths and other things that give a rough juridical edge to the process. We've already done that, whereas in most European situations, they're still following the procedural norms pretty rigorously.

You could eliminate the requirements of a second instance review when no one is contesting an affirmative decision. That would save time.

But I'm not sure how much you can really do if you if you are committed to figuring out whether a marriage actually was invalid or not. That's the problem.

So basically, you're saying that the Americans have pretty much discovered all of the ways of simplifying the process. The church might adopt those, but we're not going to see anything that is going to dramatically improve the process in the United States.

Except around the edges.

For example, under present law, a diocesan tribunal can take a case if the petitioner lives in the diocese and the respondent lives in the same episcopal conference as the petitioner. So the tribunal of Baltimore could take the case involving a petitioner living in Baltimore but a respondent living in San Francisco, but not a petitioner living in Baltimore and a respondent living in Paris.

Now, if you eliminated that restriction, American tribunals would do a whole lot more cases involving legal and illegal residents who have come across the border but whose spouse is back in Mexico or El Salvador. We're hamstrung in trying to deal with those cases.

But the real problem is that most of the countries in Latin America, with the possible exception of some parts of Mexico and Colombia and Argentina, don't have very good functioning tribunals at all.

According to CARA, there were 72,308 annulments in the United States in 1990 but only 18,558 annulments granted in 2013. What is going on?

Partly it is because people simply aren't getting married or aren't getting married in the church in situations that are high-risk for marital breakdown.

For example, when I first started working in the tribunal in 1980, it was fairly common to be dealing with marriages involving a couple of teenagers who had an unplanned pregnancy and a shotgun marriage. You don't see those cases anymore because social pressures to marry in those circumstances have pretty much eased up, so they'll live together, maybe. And the stigma of raising a child as a single mother has pretty much evaporated, so they don't get married.

Or they don't get married in the church. Therefore, when the union breaks up, there is nothing to bring them to the tribunal.

And there are a lot of Catholics who simply have decided that the church and its approach to marriage is benighted and doesn't apply to them, so they just do what they think is best and ignore the discipline of the church.

Pope Francis appointed a commission to recommend ways of simplifying the annulment process. What might come out of that commission?

Well, I frankly am a skeptic that any shortcuts that American tribunals have not already found will be forthcoming from this commission. I really think it's a waste of time. I don't think anything is going to come of it that is going to be particularly helpful.

Once the church commits itself to the idea that only those whose marriages have been declared invalid can be returned to the sacraments after a second marriage, then you're committed to a more or less complicated process for finding grounds for declaring a marriage invalid. I don't know how you get around it once you make that commitment.

Now, as you know, there are discussions for an easier, softer way to deal with the divorced and remarried. Cardinal Walter Kasper has been most forthcoming in reviving his and Cardinal Karl Lehmann's proposal for a pastoral solution that was proposed back in the 1990s. That is getting considerable discussion in connection with the synod. Now, if you want to find your way around the annulment process altogether, that's one thing to do.

But once you commit yourself to having to find that a marriage was invalid (there was something defective about it from the beginning), I think you are committed to a fairly complicated process, and I don't know how you get around it.

If the commission isn't really going to do anything, what do you think is the real solution?

I'm not quite sure how to put this without sounding like a heretic. If marriage is indissoluble, and if our ecclesiastical discipline has to accept that, then we are sort of stuck with trying as best we can to deal with people whose marriages are broken down with something like the annulment process.

I think we in the United States have gone about as far as we can go in declaring invalid marriages that have broken down. If an annulment is a declaration that there was something fundamentally flawed from the beginning, I don't know that every marriage that breaks down can be said to be invalid.

Our approach to these things simply has left us with nothing to offer those whose marriages can't be declared invalid.

Some people seem to want us to soften up the annulment process so that all marriages that break down can be declared invalid, and therefore we're not getting a situation where our adherence to the indissolubility of marriage is called into question. But you can't simply get the accommodation by eliminating procedural requirements and sort of give a smoke-and-mirrors approach.

Some people have pointed to the example of the Orthodox churches.

I have been talking only about tweaks to the existing system. If someone wants to move in the direction of the Orthodox and granting ecclesiastical divorce as a compassionate response to human weakness, that's another approach. I'm not opposed to moving in that direction, but how one can reconcile that with our teaching on indissolubility, I'm not sure.

Maybe that's the way we ought to go, but let's admit that we are rethinking the doctrine of indissolubility. And I'll leave that to the synod to debate it. My expertise is not in that area; it's in the procedural law. 

[Jesuit Fr. Thomas Reese is a senior analyst for NCR and author of Inside the Vatican: The Politics and Organization of the Catholic Church. His email address is treesesj@ncronline.org. Follow him on Twitter: @ThomasReeseSJ.]

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