Streamlining Annulments

This headline greeted the announcement that Pope Francis was establishing a commission to make suggestions for altering the annulment process in the Catholic Church. The word “streamlining” is, perhaps, not the Vatican’s word, but it does capture what this panel is expected to accomplish in the eyes of most people, that the Vatican will make it easier for people to get annulments, and that the number of annulments worldwide will greatly increase.

I’m not sure that’s what was intended by the Pope, or will be the result of the commission’s suggestions. Both Pope John Paul II and Pope Benedict XVI were well aware of the explosion of annulments in English-speaking countries, and both seemed to be concerned about it. In fact, Pope John Paul II, under whom the Code of Canon Law was revised in 1983, made frequent references of this concern to the Roman Rota in his annual address to that institution. In 2002, he said this:

An unjust declaration of nullity, opposed to the truth of the normative principles, or of the facts, is particularly serious, because, given its official relation with the Church, it favors the spread of attitudes in which the indissolubility is affirmed in word, but obscured in life.1

John Paul II surely was deeply concerned that the tremendous growth of annulments, in the United States in particular, could possibly undermine the permanence of marriage in the minds of many people. In 1968, before certain experimental changes were made in the annulment process, mainly related to psychological grounds for invalidity, there were about 300 annulments worldwide. Five years later in the United States alone, that number had exploded into the tens of thousands, and the popular assumption was growing that whenever a marriage broke down, for whatever reason, one could easily get an annulment.

The situation was so bad by the early 1980s, that a rather liberal judge in the Archdiocese of New York’s marriage tribunal suggested that the whole process should be dumped, and that people should simply be allowed to make up their own minds as to whether their marriage is valid or not. A similar suggestion was voiced recently by an American bishop from the East Coast, who suggested, “In lieu of this formal court-like process, which some participants have found intimidating, can we rely more on the conscientious personal judgment of spouses about the history of their marriage. …”2 That such a suggestion is now made by a bishop, who is not known as especially progressive, is perhaps a sign of the times for what we might see coming from the papal commission. The papal commission set up by Pope Paul VI to study the birth control question did not end up as a particularly successful venture of papal prudence.

Here is the problem. If annulments appear to be almost automatic, many people will lose respect, not only for the Church’s juridical system, but also for the Church’s teaching on the institution of marriage itself. As to the first, why bother going through the lengthy process, if the result is almost surely going to be an annulment. So, the number of annulments has dipped slightly in recent years,3 according to Cardinal Burke, because many Catholics simply ignore the Church’s legislation on marriage: “Bishops who regularly visit us at the Apostolic Signatura say that many couples today who are divorced, they don’t care anymore about the question of nullity. … They simply make a decision to live with another person, if that’s, in fact, what they are doing.”4

One thing that has not decreased, however, is the number of Catholics getting divorced these days. In addition, one can see the lack of respect for the permanence in marriage among many Catholics,5 and the growing phenomenon that many young Catholics get married today with a “divorce mentality,” that is, “if it doesn’t work out, I can always get an annulment.” All of this undermines respect for the permanence of marriage, and it’s hard to see how expanding the liberalization of the annulment process would be a pastoral solution, but rather, throwing fuel on the fire.

It’s quite common knowledge that almost all annulments today are granted on purely psychological grounds, with “lack of due discretion” regarding the essential obligations of marriage—perhaps, the most common ground for a judgment of nullity. Thirty years ago, I discussed this very real problem of growing numbers of psychologically based annulments with my bishop, John Keating, whose Gregorian dissertation on the psychological grounds for annulment was a significant contribution to the development of that ground for annulment. I had written my own analysis of the current explosion problem, of which the bishop evidently was aware when we spoke. He simply told me that he was convinced that there would have been no real problem, in his opinion, had the psychological grounds remained strictly linked to the three conjugal goods of St. Augustine, offspring, fidelity, and permanence. I thought he was probably right then, and I think the same today.

In my opinion, the real problem that caused this explosion of annulments, in the United States at least, was, in fact, the revised description of the “object of consent” after Vatican II, which was canonized in the 1983 Code of Canon Law. In the previous code, the object of consent was defined as the so-called “ius in corpus,” or the handing over of an essential right, that is, the “ius in corpus,” which the old Code defined quite clearly as a free choice, an act of the will, “by which each party gives and accepts a perpetual and exclusive right over the body, for acts which are of themselves suitable for the generation of children.” In the 1983 Code, this language was completely dropped, and the object of consent now becomes a free choice “by which a man and a woman, through an irrevocable covenant, mutually give and accept each other in order to establish marriage.” It’s very beautiful, but it’s also very vague, and from a juridical perspective, very difficult to pin down exactly what is involved in the notion, “give and accept each other.” In fact, it borders on a tautology, since giving and accepting each other is what marriage is.

On the other hand, the content of the right or obligation related to the “ius in corpus” was much clearer in the old Code. It was simply the right to the act of intercourse, which, by its essential ordination to procreation, was specified as the act necessary for consummation. Other acts in marriage might also apply to other relationships as well, but not intercourse. Some canonists and theologians, however, thought the old object of consent was too “biological” in tone and content, and not sufficiently “personal.” Indeed, after Vatican II, that judgment may well have been tainted by the concurrent widespread theological opinion that the procreative good, and purpose of the act was, itself, merely biological in nature, while the unitive good was the personal aspect of the act. Thus, the debate over contraception, and the debate over marriage itself, were intimately connected in the issue of annulments.

The problem with the new definition is that the essential rights and obligations of marriage, which are the basis for the grounds for annulments, including the annulments based on psychological grounds, were not specified in the Code, but supposedly were left to be worked out in the Church’s courts.6 But, it may also be, that the framers of the new Code simply presumed that these essential rights and obligations would be coterminous with the original three goods of marriage. However, during the “working out” of these rights and obligations over time, a fourth “good” or element of the object was introduced, what some referred to as the ability to form a community of life, and others simply referred to as the ability to establish a mature, interpersonal relationship.7 The latter notion of interpersonal relationship is, itself, so vague, that it can hardly be used in any ecclesial, juridical context. Likewise, the notion of a “consortium of life and love,” while a beautiful description of marriage, taken from Vatican II, is equally problematic to define legally, unless you simply define it in terms of the three basic goods of marriage. Otherwise, inevitably, the even vaguer notion of an ability to form a mature, interpersonal relationship creeps into its definition.

My suggestion for the new papal commission is that it revisit the object of consent, and more clearly define it for purposes consistent with the Church’s understanding of the permanence of marriage. Some procedural elements might also be fine-tuned, but unless the object of consent is more precisely defined, the main problem will remain. I think Cormac Burke, who served on the Rota, offers an interesting possibility of combining the old and the new. They might well consider this conclusion to his analysis:

The object of matrimonial consent is, therefore, the reciprocal gift of conjugal sexuality. We have expressed the right to which it gives rise as the ‘ius perpetuum et exclusivum in sexualitatem coniugalem procreativam.’ We would make some further brief remarks on this admittedly tentative formula. … It is arguable that the analysis given draws juridic and anthropological principles together in greater harmony. Marriage establishes a permanent relationship between a man and a woman, in which each gives to the other an exclusive right over personal procreativity, so denoting, in a totally unique way, the ‘gift of self’ proper to conjugal consent.

Finally, given such a definition, I think it might be possible to understand a further ground based upon the concrete definition of the object of consent. This ground is the refusal to hand over a genuine “right” to true marital acts of intercourse, that is, to the acts of sexualitatem coniugalem procreativam, as Burke so precisely defines it. Such a right runs radically counter to certain ideological tenets of our society today. While I have argued over the years that many of the annulments granted on purely psychological grounds, related solely to the consortium vitae, were dubious, I have also been convinced that a lot of these are quite probably invalid on this ground of not actually handing over the right that constitutes the object of consent. How many people today firmly hold, that no one else ever has a right over his or her body for any purpose, and how many enter marriage today with this conviction which utterly rejects St. Paul’s teaching, and the Church’s constant tradition: “A wife does not have authority over her own body, but rather her husband, and similarly a husband does not have authority over his own body, but rather his wife” (1 Cor: 7:4).

This refining of the object of consent might also make us understand, that exclusive recourse to contraceptive acts from the beginning of a marital union do not consummate the marriage. The Jesuit moral theologian, and now the U.S. Bishops’ man for doctrine, Fr. Peter Ryan, has argued this point for years, that contraceptive acts are not truly marital acts, that is, are not acts of sexualitatem coniugalem procreativam, as Fr. Burke says.8 Thus, such acts could never actually consummate the marriage. That might also have some interesting juridical effects worth looking at, as well.9

  1. zenit.org/en/articles/correct-rulings-on-nullity-are-a-service-pope-says 
  2. catholicnewsagency.com/news/bishop-tobin-on-divorce-changes-must-be-made-in-approach-not-teaching-34428/ 
  3. “the number of annulments granted annually in the United States soared from 338 in 1968, to 28,918 in 1974, to a peak of 63,933 in 1991. By 2004 the number had fallen to 46,330, and it fell even further, to 35,009, in 2007—a remarkable decline of 24 percent in three years.” catholicworldreport.com/Item/470/annulment_nation.aspx 
  4. catholicnewsagency.com/news/cardinal-burke-media-hijacking-synod-on-the-family-79760/ 
  5. “Parish priests reveal that divorced Catholics now come to the rectories thinking that obtaining an annulment is merely a matter of filling out the necessary papers and being patient.” ewtn.com/library/MARRIAGE/ANNUL.TXT
  6. For an excellent analysis of this problem of specifying the object of consent and a possible solution, see the article of Cormac Burke, Canon 1057 and the Object of Matrimonial Consent cormacburke.or.ke/node/276
  7. This can be seen in many places on the net, for instance this quote from a blog, “Several Catholic writers have added that there is a fourth essential obligation, that being an “interpersonal relationship.” catholicdoors.com/faq/qu79.htm 
  8. For instance in an address to the Fellowship of Catholic Scholars, “Since a couple cannot be rendered fit to generate new life by an act in which they are trying to prevent a new life from being generated, that act cannot be marital.” Understanding Humanae Vitae, Comments from the Fellows, Fr. Peter Ryan, S.J., STD. 
  9. Dr. William May also has written powerfully on this topic in conjunction with the moral problem of married using condoms to prevent HIV infection, “In summary, use of condoms to prevent transmission of a disease is intrinsically evil because the object freely chosen that specifies the moral nature of the act is not the marital act, an act in which husband wife give and receive one another and become literally “one flesh,” but a different kind of act, one that in no way unites them but rather changes utterly the “language of the body.” culture-of-life.org/significance-consummation-marriage-contraception-and-condoms-prevent-hiv 
Fr. Mark A. Pilon About Fr. Mark A. Pilon

Fr. Mark A. Pilon, a priest of the Diocese of Arlington, Virginia, received a Doctorate in Sacred Theology from Santa Croce University in Rome. He is a former Chair of Systematic Theology at Mount St. Mary Seminary, a former contributing editor of Triumph magazine, and a retired and visiting professor at the Notre Dame Graduate School of Christendom College. He writes regularly at littlemoretracts.wordpress.com.

Comments

  1. Ted Heywood says:

    BRAVO!!!
    I would love to believe that these issues were being actively addressed and discussed in the appropriate Church venues by informed clergy and principled experts vs Bishops that have one eye on what the press is going to say and the other on how they are going to curry favor with those that are responsible for ever increasing appointments.
    Non existent Church discipline, failure to firmly address the various splits in the Church and the utter lack of meaningful Catechesis in Diocese and parishes since Vatican II has certainly taken its toll.

  2. Thank you, Fr. Pilon, for this article. The issue is very, very important in this culture, commitment-free as it likes to be. The factor of contraception seems both (merely) symptomatic of – but also essential to – the problem, it seems to me. You wrote that contraceptive acts “could never actually consummate the marriage” – thus a marriage intentionally kept “contraceptive” for five or even ten years, say, to finish college/grad school, buy a home and start a career, could never have been consummated even for that long a period. Would such a marriage be a candidate for a fast-track annulment?

    I can imagine a couple deciding that such a period for professional establishment “before we begin our two-child family” could seem perfectly reasonable and respectful of their “personhood,” but seems to be non-“personal” and horrific in the light of the Gospel.

    In other words, I sympathize with any group trying to formulate an authentic Catholic response to the problem of immature marriages and the road to annulment that they can quickly find. The solution that I keep returning to, is, the Church needs to guide her children toward Christian maturity! This culture is suffering from a “Peter Pan” syndrome: many, many do not want to grow up. And this cultural, intellectual and emotional dumbing-down has infiltrated and weakened the Church in her mission to make disciples who are seeking maturity in Christ.

    Paul wrote, (Col 1:28) “It is he whom we proclaim, admonishing everyone and teaching everyone with all wisdom, that we may present everyone perfect in Christ.” We are failing in this. We rarely admonish, we seldom teach, we do not seem to know what perfection in Christ even is.

  3. Martin B. Drew says:

    Thank you, Father Pilon for this clear paper on matrimony and annulments. 1533-1534 HenryVII asked Pope Clement VII for an annulment of his marriage to Catherine of Aragon. He is only considering a male heir for the throne but he is desirous for Anne Bolyn, Catherine of Aragon responded that this was a valid marriage .Therefore Henry proceeded to marry Anne Bolyn causing an adulterous action , unlawful marriage fornication. Pope Clement VII did not grant the annulment since Catherine gave her rightful response and Henry knew it . Is it possible that the marriage tribunals today could use this as an example and assist a couple to decide and assist the ecclesial jurists to decide ? The couple must both agree either to have the annulment or not.

    • Micha Elyi says:

      The couple must both agree either to have the annulment or not.
      –Martin B. Drew

      Such a remark seems uncomfortably close to the annulment=Catholic divorce heresy.

  4. Thank you for an insightful article. Your solution, however, seems to be putting the cart before the horse by looking at behavior after (and for a prolonged time after) the marriage. I wonder if another way of “streamlining” annulments is to let fewer of them even inside the gate for adjudication. Is it not an admission of failure on the Church’s part that 50 percent of them are invalid? Why is this something that a committee can determine decades later but the pastor at the time-of could not have determined? The marriages upon which unjustified annulment has most impact are the ones that *were* fruitful – had children who would be negatively impacted by a declaration of annulment and all the turbulence that follows from upheaval and blended (unfortunately oxymoronically rhyming with “splendid”) “families”. John Paul II wrote the “Jeweler’s Shop” to drive home the truth that even grownup children’s attitudes towards marriage are directly impacted by their parents’ marriage. One could not do any better than to put the “speed bump” aspect back into the annulment to help marriages flourish.

    • This has been a huge Church scandal for decades. Card. Egan, a former Judge on the Tribunal of the Roman Rota once said that “Most marriages are valid, most people know that most marriages are valid and they know we know it too.” This was in the 1980’s in a talk he gave to canonists. Declarations of nullity appealed by aggrieved respondents to the Tribunal of the Roman Rota have been overturned up to 95% of the time yet the mills have been cranking them out for decades. This is what destroyed marriage indissolubility because it offers a back door to get out of an unwanted marriage. No serious consideration is given to Respondents who know their marriage is valid. Powerful proofs many times mean nothing as the focus has been to grant nullity at all costs. The petitioners–who often times already have a new honey waiting in the wings–are treated with false compassion. This leaves out the hurting respondent, the devastated children and the truth. I wonder how priests would feel if suddenly the validity of their ordinations were put into question. Priests must know they are valid just as spouses know their consent was valid. Think of those priests who entered the priesthood with false motives. When one party in a marriage does that it is considered simultion, Why haven’t those priests ordinations been made invalid?

      • Micha Elyi says:

        Most marriages are valid, most people know that most marriages are valid and they know we know it too.
        –Cardinal Egan

        Most marriages are not brought before the Tribunal. Those that are, are not “most marriages”.

        Logic, it is a sign of God’s benevolence. Embrace it.

  5. I too see canon 1055 used to support allegations that many marriages are invalid because the couple didn’t achieve some undefended level of “partnership of life.”

    Though, in the writings of Cardinal Edward Egan and Rota judge Msgr. Cormac Burke, the level of “partnership” does not have anything to do with proving nullity. See http://www.marysadvocates.org/annulment/annulment.html. Cardinal Egan was one of the six editors who helped draft the language in the current code of canon law and taught canon law in Rome

    In your role as Chairman of Systematic Theology Department. Mt. St. Mary’s Seminary at Emmitsburg, will you Fr. Pilon, bring your attention to another issue?

    No Catholic is aloud to file in the civil forum for divorce or separation without first obtaining the Bishop’s permission. And the bishop is supposed to consider whether the decree sought from the civil forum would be contrary to divine law. If the only reason for separation is that one party is alleging the marraige is invalid, what moral principles determine the parameters of a separation in accord with divine law. For example, in a situation in which a spouse lied about promising permanence of marriage, what plan would be in accord with divine law for children, and would the liar owe to repair financial damages to the other spouse? In a situation wherein one spouse truly had a grave lack of discretion such that he or she could not think straight enough to exercise his or her will to choose marraige, would it be in accord with divine law to make the other spouse pay huge sums of spousal support and split property?

    When canons 104, 1153 and 1692 are ignored in the United States, professed Catholics are using no-fault divorce laws to take the children away from an innocent spouse, who properly made his or her part of the marriage consent. But those who simulated, or had grave psychic anomalies are winning custody, parenting power, spousal support and child support. Can help us find authoritative parameters on the kinds of separation decrees that would be in accord with divine law.

  6. Sheryl Temaat says:

    Father Pilon has explained what has happened since Vatican II concerning the “object of consent.”

    Before it was the right over the body for those acts proper for the conception of children.

    Now the interpersonal relationship/communion of life of the couple is considered the object of consent. That certainly is a vague definition, so vague that it could be applied to homosexual unions.

    But I see a more serious problem, and until it is solved, there is little hope of saving the Catholic family. There are many mortal sins committed long before anyone files for divorce. Refusing the marital act , using contraceptives, lusting after those who are not the spouse are common ones.

    If married couples were once more taught that marriage is for their salvation rather than for their personal fulfillment here and now, we could finally make progress in reversing the destruction of the family.

    And, of course, the opposite of salvation is damnation, which every good priest has an obligation to teach and preach.

  7. Egan’s comment was in reference to appealed marriages, so logic holds. The huber of annulments undermines any claims of Catholics to take marriage seriously. It needs to be addressed. Meanwhile, the Pope wants to streamline the process as a way to “strengthen” the family. That’s where logic is not being embraced.

  8. The more I think about this issue, the more I start to think that the Orthodox practice of “oikonomia” might be the best option. Everyone knows about the article written by Ratzinger in ’72, often cited by Kasper, in favor of a return to this early practice, although it has been noted recently that in the latest German edition he omits the concluding paragraphs and supports instead a revision of the annulment system. But another pertinent writing of his is an address in 84/83, collected in “Behold the Pierced One,” in which he makes clear, drawing on William of Auvergne and Bonaventure especially, that when the Church excludes someone from communion (i.e., “excommunication”), it does not – because it cannot – exclude the person from the communion of love, and thus he points out that being excluded juridically can serve as a way to salvation similar to martyrdom. This presupposes that when the Church refuses an annulment to someone, for example, its judgment is not infallible and therefore the continuance of a subsequent marriage is not deemed to be adulterous – the sin is rather to disobey the Church in this matter (and of course disobeying the Church may be venial or mortal, depending). It clear that Ratzinger does not think being excommunicated for remarriage means being judged an adulterer.
    Given that the Church does not claim to judge whether any given civil marriage is adulterous or not, wouldnt it be better to require harsh penances of those entering second unions but desiring full communion, rather than leaving the burden on the competence of lawyers appointed by hierarchy to untangle the complicated webs men & women weave in this world of concupiscence?
    Would it not do more just and be a greater testament to the indissolubility of *sacramental* marriage to require harsh penances for the remarried seeking communion w/ the Church & suspend judgment on validity, instead of presuming validity & depending on the competence of tribunals to be more or less lax in discernment of whether the conditions of sacramentality are met in particular cases? Would it not be placing more confidence in the faithful (in dialogue with clergy) rather than undermining the competence of clergy, relegating the burden of culpability to the partners themselves rather than the tribunal lawyers appointed by the hierarchy?

    • If the subsequent union is not adulterous, then why should there be a harsh penance? A harsh penance can be just only if imposed for grave sin. If that grave sin continues, then how can the sinner be admitted to Holy Communion without endangering his immortal soul? Are we to have a form of confession in which the penitent says, “Forgive me, Father, for I am going to sin,” and let him purchase absolution from future sin through a “harsh penance”? No, this would not be a testament to indissolubility of marriage, but a degrading of it.

      • the penance is to demonstrate good faith and to repair for any fault one may have for the previous breakup, which has nothing to do with whether or not the union was sacramental. so there is no comparison at all to asking forgiveness for future sins – that begs the question: is the subsequent union sacramental or not? it depends on whether the first was, and that depends on a lot of conditions, which can be read about in canon law, which of course is subject to change itself, since it has changed many times over the course of history.

    • According to news reports, Pope Emeritus Benedict XVI did not simply “omit the concluding paragraphs” of what he wrote over 40 years ago regarding communion for the divorced and remarried, but he made major revisions to it. That is a huge difference and shows that he is firmly against it. I do not think a revision of the annulment process–if that is an actual quote–means Pope Benedict wants to make annulments easier to obtain. He was strongly in agreement with his predecessor, now St. John Paul II, who fully defended Church teaching on marriage, divorce and canon law regarding nullity of marriage. Please take time to read the 30+ years of both Popes’ annual addresses to the Tribunal of the Roman Rota and you will see there is no wiggle room in their clear teaching and adherence to the faith. These addresses clearly rebuke over and over the liberality of many local tribunals in granting nullity.
      According to Cardinal Raymond Burke, there is nothing at all wrong with the “process” of annulments. The problems come because the process of studying marriage cases–which was more clearly defined and emphasized in Dignitas Connubii in 2005, then Pope John Paul II’s initiative to help the tribunals in this task, is still not followed or applied correctly. Most of the tribunals in the US shamefully grant nullity 100% of the time, and are likely sending many of those who believe they have been released from their burdensome vows, onto second adulterous marriages. Truth is Truth. If the marriage bond is valid, and it is not so difficult to marry validly, no annulment can erase it. This is what most do not understand.
      “This presupposes that when the Church refuses an annulment to someone, for example, its judgment is not infallible and therefore the continuance of a subsequent marriage is not deemed to be adulterous – the sin is rather to disobey the Church in this matter.”
      This thinking makes no sense. Adultery has nothing to do with the judgment of a tribunal. It happens first in the mind and then in the action of couples along with the many sins that brought them and keep them together. It is a sin not to be submissive to the authority of the Church, but it is not a sin to disobey those in the Church who abuse their authority and the Truths of the faith. This is clear as the teaching authority of the Tribunal of the Roma Rota on the lower tribunals has been rejected repeatedly. Some have called this a virtual schism between the US tribunals and Rome.
      The Orthodox practice is plain silly. Adultery is adultery. There is no mercy in this when souls are at stake. God is merciful, but His mercy does not cover those who willfully remain in their sin.
      The eternal benefits of life-long marriage must be taught. It was never meant to be just an earthly endeavor in order to have a happy life. It is sacrificial and pain and troubles come. The trials and sufferings can bring sanctity and salvation to the spouses, which truly is part of God’s plan. Today the focus is on the earthly life alone which is very sad. And remember especially that there are children to consider.

      • pointing out that, in your opinion, many annulments are granted which should not precisely proves my point – there is no infallible judgment about when a marriage is sacramental and when it is adulterous. the question is how best for the church to discern whether a marriage that has been civilly ‘dissolved’ is sacramental and therefore indissoluble or not and therefore freeing the person to marry “again.” to repeat that adultery is adultery is not an argument – it is to turn a blind eye to the distinctions the church makes and claim competence on the sacramentality or lack thereof in civilly dissolved marriages.

  9. http://abyssum.org/2014/12/03/pastoral-practice-must-not-contradict-magisterial-doctrine/
    see also the links therein to Ratzinger’s latest thoughts on the question

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