By Fr. Leonard Kennedy
Issue: March 1999
The Catholic Church does not accept divorce. Jesus insisted on the original intention of the Creator who willed that marriage be indissoluble (Mt 5:31-21; 19:3-9; Mk 10:9; Lk 16:18; 1 Cor 7:10-11). However, the Church can declare the nullity of a marriage, i.e., declare that the marriage never existed (Code of Canon Law, #1095-1107; see also the Catechism of the Catholic Church, under "Divorce"). Last October Pope John Paul II, meeting with a delegation of US bishops, expressed his dissatisfaction with the number of annulments being granted to Catholics. US Catholics receive a disproportionately greater number of annulments each year.
The Holy Father said that annulments should be a last resort. "The indissolubility of marriage is a teaching that comes from Christ himself, and the first duty of pastors and pastoral workers is therefore to help couples overcome whatever difficulties arise. The referral of matrimonial cases to the tribunal should be a last resort."
The author of this book is a sociologist. After he had been married for fifteen years, he was notified that he was the respondent in the case for annulment of his marriage, which he was perfectly sure had been valid. In order to oppose the annulment he had to spend all his spare time reading about annulments and fighting to save the validity of his marriage. He has now become an expert in this matter and has decided to share with others what he has learned. He examines every aspect of annulments in the United States.
The United States has 6% of the world's Catholics but grants 78% percent of the world's annulments. In 1968 the Church there granted fewer than 600 annulments; from 1984 to 1994 it granted just under 59,000 annually. But more than 90% of the cases which were appealed to the highest matrimonial court, the Roman Rota, were overturned.
The author gives several reasons for the incredible growth in American annulments;
1. There is advertising in church bulletins, Catholic newspapers, and even the secular press, that annulments are available, sometimes with a suggested guarantee that they will be granted. "Some invitations practically promise an annulment to all who apply. The promotional efforts . . . may evoke responses from . . . spouses who dream of greener marital pastures but would not seriously consider separation and divorce were annulment not presented as a convenient and acceptable alternative."
One brochure said: "Usually once a request for annulment is accepted, a favorable decision is given. However, a careful review is made before a request is accepted . . . . A ëfavorable' decision is synonymous with annulment; evidently upholding the validity of marriage is ëunfavorable.'"
2. Most petitions are presented to judges without proper screening. "No fewer than 66 of the 165 diocesan and archdiocesan tribunals . . . decided to go to trial with every petition presented."
3. A high percentage of cases that are tried end in a declaration of nullity. From 1984 to 1994 it was 97% for First Instance trials. All cases however have to have a second trial. The percentage of decisions overturned in the United States is 4/10 of 1%. "What the picture reveals is that mandatory review, and appeals leading to retrials at Second Instance, have done very little to tarnish America's reputation as the annulment capital of the universe."
4. Many matrimonial judges are not well qualified for their work, lacking a doctorate or a licentiate in canon law. Sometimes judges of the First Instance are also judges (on other cases) of the Second Instance, which is not good practice. Three judges are recommended for trials, but most often there is only one (which is allowed with permission).
5. "In practice . . . many if not most tribunal experts seldom conduct a direct, face-to-face examination of either spouse." "Cases have come to my attention where the expert . . . arrived at a diagnosis of defective consent solely by means of a telephone conversation with a tribunal judge . . . . In most judicial systems, attempts to introduce into evidence expert diagnosis of that nature would be laughed out of court."
6.Sometimes the Defender of the Bond does not have a canon law degree and his opinion can be easily overruled by a highly trained judge.
7.Respondents are usually not fully informed of all their options.
8.Rather than considering the detrimental effect on respect for the sacrament of marriage which is caused by the scandal of almost automatic annulment, and the cynicism produced in some of the parties to an annulment and in Catholics generally, those handling the annulments concentrate on sympathy for their clients, or often just for the one initiating the annulment.
9.Theologians argue that in certain papal documents, such as Gaudium et spes and Casti Connubii, the Church has changed the definition of marriage. This argument is fallacious.
10.Many judges think that, if a marriage is not an ideal one, it is not a valid marriage at all, and that therefore an annulment should be granted to any marriage that has broken up.
11.68% of annulments today are granted because of "defective consent," which involves at least one of the parties not having sufficient knowledge or maturity to know what was involved in marriage. The ingenuity of judges in confidently asserting that such knowledge or maturity was lacking is amazing. Vasoli says that it is done by substituting "junk psychology" for sound psychology and psychiatry. He quotes the statement of one matrimonial judge: "There is no marriage which, given a little time for investigation, we cannot declare invalid."
According to canon law, defective consent exists only when
ï a person does not have the use of reason,
ï there is a grave lack of discretionary judgment concerning the essential matrimonial rights and obligations,
ï there is something of a psychological nature rendering a person incapable of assuming the essential obligations of marriage.
"Notwithstanding efforts by some canonists to add layers of complexity to the rights, duties, and properties of marriage," states Vasoli, "there really is not much that one must know and will to enter a valid marriage."
The Roman Rota
The popes and the Roman Rota have tried to stop what they consider to be abuses of marriage tribunals in the United States and elsewhere, as, for example, in the Netherlands, but apparently without success. Even the fact that the Rota overturned over 90% of the appeals made to it from the United States has had no observable effect.
Recently the Pope has asked bishops for "strict observance of canonical directions" concerning annulment. He said that the bishops should make certain that "the Defender of the Bond is diligent in presenting and expounding all that can reasonably be argued against the nullity." "Their tribunals," he added, should not act "as an almost automatic confirmation of the judgment of the tribunal of First Instance," and it must be kept in mind that "both parties . . . have rights which must be scrupulously respected."
He also noted that "the tribunal is to make use of the services of an expert in psychology or psychiatry who shares a Christian anthropology in accordance with the Church's understanding of the human person." Most importantly, the Pope stated that "marriage enjoys the favour of the law" (Code of Canon Law, #1060) and that "the judge may not pass sentence in favour of the nullity . . . if he has not first acquired the moral certainty of the existence of nullity; probability alone is not sufficient to decide a case."
Finally the Holy Father said: "Your responsibility as bishops . . .is to ensure that diocesan tribunals exercise faithfully the ministry of truth and justice" (Origins, Oct. 29, 1998).
Vasoli remarks that not much is done, when an annulment is granted, to be sure that the party who is said to have had defective consent is now able to consent properly to marriage with another person, which such a party usually does, or has done already. He also points out that, though literature on how to get or grant an annulment is copious, there is very little on how to defend the validity of a marriage, as he found out when he tried to defend his own.
He writes too: "One searches the canonical literature in vain for discussion of the impact annulment has on children . . . . What does the experience teach them about the sanctity and permanence of marriage? And what turmoil is visited upon them if the respondent-parent insists that the marriage was valid? Why did Daddy but not Mommy remarry?"
In the end, he writes, the scandal generated by a particular annulment which people who know the spouses just can't possibly approve of "is infinitesimal compared to the scandal generated by the tribunal system. The system as a whole is scandalous."
Vasoli concludes that "the American Church suffers a runaway tribunal bent on making annulment as easy and painless as possible. The statistical evidence supporting this characterization is overpowering . . . . The blunt truth of the matter is that an entire generation of tribunalists has been indoctrinated in the rectitude of what they do . . . . The leading professors of canon law are precisely those largely responsible for making the system what it is . . . . References to annulment as ëCatholic divorce' are now part of everyday speech."
Vasoli's devastating critique of the present practice of granting annulments will not change the system easily. We already see a tribunalist trying to marginalize this book by transferring attention from its contents to the mind of its author. In a review of the book in the July/August Crisis, Father Joseph Hennessy, J.C.L., of the Boston Metropolitan Tribunal, gives lip service to many of Vasoli's criticisms but tries to draw the mind of the reader away from them by accusing Vasoli of having "smoldering wrath" because of his personal experience, of persisting in "questioning the subjective good faith of the judges," of accusing them of paying only "lip service" to the magisterium, of being filled with "vitriol", and of impugning the character of tribunalists. An unbiased reader would not agree with this appraisal, which sidesteps the issues. Of course Vasoli is dealing with a personal as well as a national scandal, but he deals with the actions, not the minds, of those causing it. And the Roman Rota overturned the granting of an annulment to his wife.
The book deals with the United States. The only reference to Canada is: "Cardinal Edouard Gagnon . . . related that during a visit to Alberta he and several bishops had occasion to examine sentences handled by an officialis [a judge] who did not believe in the indissolubility of marriage." In 1997 in Canada, 3,187 First Instance cases were resolved by sentence, in which 3,146 annulments were granted and only 41 were denied. In the same year in Canada, of 2951 Second Instance appeal cases, only 29 First Instance cases were overturned.
Living common-law in Canada
A priest from the Halifax archdiocese is writing a thesis for his doctorate in pastoral theology, and has published a spiral-bound xeroxed preview of it. The thesis deals with common-law unions in Canada. Fr. Joseph B. Christensen has done the Catholic Church a service by bringing this topic, until now not sufficiently dealt with publicly, before the national consciousness.
He has distributed questionaires to chancery offices, to priests across the country, to parents, and to those about to be married. The results are published in this book, which contains also two talks given by the author, one to priests in his own archdiocese, the other to laity in one of his own parishes. The contents of these two talks overlap, as one might expect, with each other and with other parts of the book, and undoubtedly will not appear in the final thesis.
Over half of Catholics coming to the rectory for marriage today are living common-law. Some reasons why so many are living common-law are (1) they think it is cheaper, (2) they think it will give them guidance in deciding whether to marry, (3) they say "Everyone's doing it", (4) they're self centered, and (5) they have given up the practice of their faith, the sense of sin, and, along with this, of course, a knowledge of God.
The teaching of Christ and his Church is clear. For example, sex outside of marriage is gravely sinful; one should not receive the Sacrament of Marriage in the state of sin; there must be sufficient knowledge and a sincere desire before this Sacrament is administered; receiving this Sacrament in mortal sin does not necessarily render the Sacrament invalid, though the action is sacrilegious and confers no grace until everything is rectified.
Cause of frustration
Christensen considers the request for marriage made by a couple living common-law to be the chief cause of frustration in priests today. The issue is complex and the problems involved are serious. Ordinarily, at least in the recent past, one or both of the parties had sufficient knowledge of the Catholic faith and also lived in accordance with it. This is not the ordinary case today.
Many couples, though not forbidden to marry because of an impediment such as a marriage bond with a third party, have obstacles which priests find difficult to overcome. For example, is the motive for wanting to be married in the Church a desire to live as God wants, or is it simply to please parents? Is the couple willing to cease cohabitation until they are married? Are the Catholic parties willing to go to Confession? Do they have sufficient knowledge of the faith to realize what is involved in the Sacrament of Marriage? Will they practice the faith from now on?
Further questions arise if it is decided that they should be allowed to marry. Will there be a Mass? Will they be allowed to receive Communion? Should only a small wedding be tolerated?
About these things there are differing attitudes among priests and also among people. Will compromises betray the Sacrament, lead to a sacrilege?
No wonder priests can become frustrated.
Some diocesan guidelines
Not many Canadian dioceses have detailed guidelines. One of the better sets, dating from 1994, states very clearly that "cohabiting couples who seek a Catholic marriage should not be refused a Catholic ceremony solely on account of their cohabitation. Cohabitation is a moral fault, not a canonical impediment.
"Pastors should make every effort to persuade couples to live apart, at least for the time approaching their marriage. If the couple accepts the essential elements of marriage, but all efforts in separating them do not succeed, ask, as a last resort, that they abstain from sex for a few days immediately before the wedding so that they will be able to receive the Sacraments of Penance and Holy Eucharist, and also receive the Sacrament of Marriage fruitfully while in the state of grace.
"If a couple rejects any of the essential elements (the good of the spouses, procreation, the education of offspring), or any of the essential properties (unity, indissolubility) of Christian marriage, then a priest many not marry them; indeed such a marriage would be invalid. In summary, if marriage in the Church has some religious meaning for the cohabiting couple, then the priest may marry them; however, if there is a complete absence of religious meaning for the couple in a church ceremony, then the marriage is to be postponed. These principles apply equally to couples who are not cohabiting but are habitually sexually active with each other."
Reaction from priests
One priest writes: "I hope that this has been dealt with in the pre marriage course. If they come through the course and have not changed, I just go along. At one time I had the practice of refusing to marry them until they separated. However, I found out that most of the priests were not taking any stand and it then began that the couples would shop around to find a priest who would not ask too many questions. So my efforts were for naught. Until we come to a uniform policy for a diocese, a region, or the country, there is not much we can do."
(Sometimes it leads to conflicts among priests. Recently, in Ottawa, one priest refused to marry a couple because they insited on living together. They then went to a neighbouring parish with a "liberal" priest who promptly got permission from the bishop to marry them in the first priest's church!)
Another priest writes: "It is important to note that we do not need solutions which require more preparation on [the part] of the priest. The priest is involved in preparation for Baptism, Penance, Confirmation, Eucharist, Marriage, the Sacrament of the Sick, etc. We just get lay people trained and comfortable in assisting when their term is up and they are gone. A pastoral solution to common-law unions involving more work on the part of priests is not the answer.
"If I were to advance a solution, it would be to have the Church less involved in the marriage business. The form of marriage could be done away with and have the Church recognize a non-sacramental marriage. When the couple are ready to celebrate the Sacrament of Marriage let them come forth and request such from the Church. It is my contention that we are dealing with the majority of priests presiding at invalid marriages; some priests are aware of this and the others have not caught on. Most of the couples coming to get married do not have the spiritual goods required to make a permanent matrimonial commitment."
Reactions from couples
Some couples preparing for marriage expressed these views:
"I have difficulty agreeing with abstinence before marriage. Although I would like 'to wait' I just don't feel it is practical in today's world and the guilt of not conforming to the laws of the Roman Catholic Church has actually kept me away from attending."
"I feel the Church should not take such a negative view of people living together, provided they feel their living together is part of their leading up to marriage."
"My outside view is that the Church risks alienating its youth, its future, by its outdated views. My belief is that most priests are aware and non-judgmental of the reality re living together, birth control, etc., but the lack of leadership from the top is criminal as it is usually the under educated, poor, developing world that listens. I also understand that at some point I will have to agree to bring our children up as Catholics solely in order for us to be married in the Catholic Church. Getting people to knowingly lie to the Church somehow seems wrong."
Some of Fr Christensen's conclusions
1. Bishops, priests, and laity should be vitally interested in this problem, which has reached crisis proportions.
2. There should be national guidelines in this matter because "closing our pastoral eyes to it has indeed become the safest, and the most politically correct, way of dealing with common-law unions to date. . . . There has to be something much better." The guidelines should be given to couples at the start of marriage preparation so that there will be no surprises or confrontation.
3. The guidelines must be insisted upon.
4. Many couples "have little or no understanding of Christian teachings"; students in Catholic schools are not being taught the faith well. (This merely confirms what has been observed throughout the country for years.)
5. The author raises the question whether there should be a "two-tiered system of civil and sacramental weddings," such as some other countries have. And he seems inclined to consider this possibility favourably.
Copies of Fr Christensen's book may be purchased by writing to him at P.O. Box 337, Parrsboro, NS, BOM 1S0. Responses to Catholic Insight or to Fr Christensen are encouraged.
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Updated: Dec 3rd, 2006 - 14:48:37