Declaration of Nullity of Marriage
In the Catholic Church, a declaration of nullity, commonly called an annulment and less commonly a decree of nullity, is a judgment on the part of an ecclesiastical tribunal determining that a marriage was invalidly contracted, or less commonly, a judgment determining that sacred ordination was invalidly conferred.
A matrimonial nullity trial, governed by the Church’s Canon Law, is a judicial process whereby a canonical tribunal determines whether the marriage was void at its inception (ab initio). A ‘Declaration of Nullity’ is not the dissolution of an existing marriage (as is a dispensation from a marriage ‘ratum sed non consummatum’ and an ‘annulment’ in civil law), but rather a determination that consent was never validly exchanged due to a failure to meet the requirements to enter validly into matrimony and thus a marriage never existed.
The Catholic Church teaches that, in a true marriage, one man and one woman become ‘one flesh’ before the eyes of God. Various impediments can render a person unable to validly contract a marriage. And, besides impediments, marriage consent can be rendered null due to invalidating factors such as simulation or deceit, or to psychic incapacity.
For this reason (or for other reasons that render the marriage null and void) the Church, after an examination of the situation by the competent ecclesiastical tribunal, can declare the nullity of a marriage, i.e., that the marriage never existed. In this case the contracting parties are free to marry, provided the natural obligations of a previous union are discharged. – Catechism of the Catholic Church (CCC 1629)
The correction of this invalidity after the marriage requires first that the impediment has ceased or has been dispensed, and then a ‘convalidation’ can take place or a ‘sanatio in radice’ can be granted to make the marriage valid.
Grounds for nullity
A marriage may be declared invalid because at least one of the two parties was not free to consent to the marriage or did not fully commit to the marriage.
Grounds for nullity include:
- Simulation of consent; that is, the conscious and positive exclusion at consent by either or both of the contracting parties of one or all of the essential properties or ‘goods’ of marriage: a) exclusivity of the marital relationship; b) the permanence of the marital bond; c) openness to offspring as the natural fruit of marriage (canon 1101§2)
- Deliberate deceit about some personal quality that can objectively and gravely perturb conjugal life (Canon 1098)
- Conditional consent, if the condition at the time of marriage concerns the future, or if it concerns the past or present and is actually unfulfilled (Canon 1102)
- Force or grave fear imposed on a person to obtain their consent (Canon 1103)
- A serious lack of the discretion of judgment at consent concerning the essential matrimonial rights and obligations to be given (Canon 1095 n.2)
- Psychic incapacity at consent to undertake the essential obligations of marriage (Canon 1095 n.3).
According to Canon 1095 a marriage can be declared null only when consent was given in the presence of some grave lack of discretionary judgment regarding the essential rights and obligations of marriage, or of some real incapacity to assume these essential obligations. Pope Benedict XVI in his address to the Roman Rota in 2009, echoing words of his predecessor John Paul II, has criticized “the exaggerated and almost automatic multiplication of declarations of nullity of marriage in cases of the failure of marriage on the pretext of some immaturity or psychic weakness on the part of the contracting parties”. Calling for “the reaffirmation of the innate human capacity for matrimony”, he insisted on the point made in 1987 by John Paul II that “only incapacity and not difficulty in giving consent invalidates a marriage”.
Marriages annulled under the Catholic Church are considered as void ‘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 priest (unless a dispensation was first obtained).
Canon law presumes all marriages are valid until proven otherwise. 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 (1983 CIC, Canon 1095). 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 good of the spouses 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.