This article ran on page f3 of
THE BOSTON SUNDAY GLOBE * APRIL 20, 1997

You can also see a more detailed article on this subject at http://www.rcab.org/Information/Annulment/marriage.html or for a more complete treatment of this subject, see Fr. Foster's newly released book, Annulment: The Wedding That Was: How The Church Can Declare A Marriage Null, published by Paulist Press.

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HOW IS A MARRIAGE DECLARED NULL?

Discussion touches not only on process, but also Church domain and doctrine

By Rev. Michael Smith Foster

When two people contract a marriage, a public reality comes into existence. If that marriage breaks down, civil divorce often follows. The rise of divorce rates in the United States is clearly troublesome. This is especially so when a divorce involves Catholics, since the Church holds the sacrament of marriage to be indissoluble - a permanent, covenant relationship between God and the spouses.

Only when the marriage is declared null can a couple be freed of the bonds of matrimony.

But the issue of annulment has been a point of public controversy recently. Some have challenged the Church's authority to intrude in their lives after a divorce, and to make a judgment about the sacramental nature of their marriage. Many others have simply misunderstood what an annulment is, or how the Church decides to grant one. The debate is not just about the tribunal process but about the Church's domain over marriage and its teaching on indissolubility.

How is a sacramental marriage declared null? First, the parties and witnesses present testimonies to a Church court, which is composed of women and men, both religious and lay. The petitioner seeks to overturn the legal presumption that a sacrament had come into existence on the wedding day. The other party to the marriage may oppose the annulment or agree to it. In every case, a Church-appointed Defender of the Bond will argue in favor of the marriage and against the petition for nullity. Once the details of the particular case have been studied in light of the Church's teachings on marriage, a judgment in favor of nullity may be rendered.

As recent media attention has demonstrated, these proceedings can be contentious.

Marriage is a public matter

Some believe marriage is a private matter. They ask why the Church involves itself. The answer is that the Church, like the state, considers marriage to be a public act, not simply a private matter between two individuals. After all, a marriage has many public ramifications for both the ecclesial and civil societies, including the well-being of the spouses, the welfare of children, and the cohesive nature of the community as a whole.

Both Church and civil societies place premarital requirements on the bride and groom. In most states, without a civil license and officiant, there is no civil recognition of marriage. Similarly, two Catholics must marry in the presence of an authorized priest or deacon and two witnesses. If they do not, the Church does not recognize a marriage. Legal qualifications such as a minimum age are also required by both societies.

Civilly, if people are already married, they cannot marry another; to do so is bigamous, and the second marriage is not recognized as valid by the state. Similarly, people who are already married cannot marry others in the Church. They are incapable of doing so because of the prior marriage.

Once the state dissolves a marriage through divorce, the ex-spouses are free to marry again. This is where the two societies diverge. Following the words of Jesus, the Church holds that no human power can dissolve a valid, consummated sacramental marriage. This truth is enshrined in the Church's theological and canonical traditions. A declaration of nullity is not a dissolution of marriage, nor is it a Church divorce. Rather, it is a judicial finding that a valid sacramental marriage had not been brought about on the wedding day, as the faith community had presumed.

Understanding that presumption is important. Once a baptized bride and groom - considered by the Church to be the ministers of the sacrament - have publicly exchanged their consent on the wedding day, a valid, sacramental marriage is believed to have come into existence.

But any legal presumption must yield to contrary evidence. For example, in American criminal law, a well-known legal presumption is that a defendant is innocent until proven guilty. If enough evidence is brought forward to prove otherwise, the presumption of innocence yields to a verdict of guilt.

In much the same way, a wedding is a celebration of a sacrament, brought about through the bride and groom's consent. If afterward enough information is brought forward to indicate the consent was defective, the presumption of validity will yield to a declaration of nullity. The burden of proof is on the petitioner. If the case lacks the requisite proof, the validity of the marriage is upheld and the sentence is rendered in the negative.

Consent of the parties is multifaceted

Like the wedding diamond, the bride and groom's consent is multifaceted. It is a free act of the will, with the intention to accept the essential elements of marriage: permanence, fidelity, and conjugal love (which is open to children).

It is presumed that both parties possess good discretionary judgment when they consent to marriage. Premarital jitters, slight doubts, or age appropriate immaturity aside, there must be no reason to believe the relationship is seriously troubled.

Moreover, it is presumed that neither the bride nor the groom suffers from an untreated psychological anomaly, such as schizophrenia, paranoia, or multiple personalities. For the consent to be genuine, there is to be no fraud or condition placed on it. The tribunal investigation examines every facet of consent.

If an annulment is later granted, it is only when there is evidence that on the day of the wedding, specific (but then unknown) factors prevented the bride and groom from bringing about a valid sacrament, as had been presumed. The Church does not deny that love existed in the relationship or family. The ceremony is not wiped away. The relationship between husband and wife, the years spent together, is not wiped away. The children remain legitimate. The declaration states there was no sacramental effect on the day of the wedding because a particular facet of consent was lacking in one or both of the parties.

Furthermore, when a declaration is granted, the Church is very concerned for the total welfare of the children. It insists that both parents do all in their power to provide for the physical, social, cultural, moral, and religious upbringing of their children. Serious maladaptive behaviors or troublesome circumstances during the marriage may surface in the tribunal investigation. Thus, for the good of the individual, future spouse, and children, and the sanctity of the sacrament, these issues would have to be addressed by the parties before the Church permitted any future marriage.

Clarifying misconceptions

While a declaration of nullity is a matter of record in the Church, the facts of the case are confidential. The records (which include the grounds on which the annulment was granted) are sealed. Such confidentiality is meant to protect the good name and reputation of all the parties involved. Yet such confidentiality inevitably leads to speculation and misconceptions. Some of the more fallacious notions need to be corrected.

Despite what some have said, the Church affords any divorced person the right to petition for a declaration of nullity. Thousands of men and women do so each year, with a slightly higher percent of petitioners being women. The length of the marriage or presence of children does not prevent the acceptance of a petition. Nor does the name or position of the petitioner, respondent, or any witness matter. Everyone is accorded the same procedural rights. No one is penalized for being well known, nor for being unknown. Everyone is treated justly and in accord with the norm of law.

Modest fees are involved. They support the operation of the Church court (salaries and building expenses) and are readily reduced, or done away with, in situations of need. For instance, a case adjudicated in Boston has a processing fee of $450. This reflects half the actual cost; the archdiocese assumes the other half.

In the last 30 years, the number of declarations granted in this country is much higher than in the past. One reason is that procedural laws were changed and expanded in the late 1960s and then again with the promulgation of the 1983 Code of Canon Law. Now cases can be adjudicated on the local level. Furthermore, Church jurisprudence was expanded in the light of the teachings of the Second Vatican Council, so cases could be heard on new and expanded grounds.

But cultural changes also help explain the increase in annulments. Barbara Dafoe Whitehead's recent book, ``The Divorce Culture,'' notes that American culture is hostile to permanence in marriage. Other cultural values are also at variance with Church teachings. A bride and groom are not immune to those influences.

The bishops of our country have invested personnel and resources to ensure the Church's jurisprudence and procedural law are fulfilled. With this commitment of bishops, canon lawyers, and the dedicated personnel who staff them, tribunals in the United States will continue to promote justice for individuals and foster the Church's teachings on marriage, which is based on solid faith.

Rev. Michael Smith Foster, J.C.D., is the Associate Judicial Vicar of the Archdiocese of Boston. He serves as a presiding judge on the Metropolitan Tribunal and as a collegiate judge on the Provincial Court of Appeal.

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