Divorce and Annulment in the Catholic Church

Church Tradition:

Unlike Protestants and the Anglican Communion, who base their beliefs almost exclusively on the Bible, Catholics also value the cumulative tradition of the Church.

The Church Fathers in the early church movement, the Church Councils in later years, and various popes to the present time have consistently held that after a valid marriage is consummated, it is indissoluble until the death of one spouse. Some examples:

The Shepherd of Hermas (a.k.a. The Pastor of Hermas) describes a conversation between a Christian leader and a follower. 4 There is no consensus on the date of its composition; estimates range from 50 to 160 CE. or even later. One source says that the most likely date is "between c.AD 139-155; proposals for a first-century date of composition are largely dismissed today." 5 Some attribute the authorship to the Apostolic Fathers; others to the Hermas mentioned by Paul; still others say the work is anonymous. "Irenaeus, Clement of Alexandria, Origen and [initially] Tertullian treated it as divinely inspired, on par with what was later to become New Testament Scripture." 5 Some unsuccessfully argued that it be included as a canonical work in the Bible. Section 35.1, "Mandate the Fourth" deals with marriage. Verses 35:16-18 discuss a case in which a wife commits adultery, and the husband detects it:

35:16 "What then, Sir", say I, "shall the husband do, if the wife continue in this case"?

35:17 "Let him divorce her", said he, "and let the husband abide alone:"

35:18 "but if after divorcing his wife he shall marry another, he likewise commits adultery".

Justin Martyr (circa 107-176 CE) wrote: "He that marrys her that has been put away by another man commits adultery. " 6

Athenagoras (134 - 190 CE) wrote "For whosoever shall put away his wife and shall marry another, committed adultery." 7

Tertullian (160-230 CE) wrote: "They enter into adulterous unions even when they do not put away their wives, we are not allowed to even marry although we put our wives away." 8

Clement of Alexandria (150-circa 220 CE) was very specific when he wrote: "You shall not put away your wife except for fornication, and [Holy Scripture] considers as adultery a remarriage while the other of the separated persons survives." 9

New Advent.org lists similar writings by Basil of Cæsarea, John Chrysostom, Ambrose, Jerome, and Augustine. Their web site mentions that some ancient authors "treat the husband more mildly in case of adultery, or seem to allow him a new marriage after the infidelity of his spouse, does not prove that these expressions are to be understood of the permissibility of a new marriage, but of the lesser canonical penance and of exemption from punishment by civil law. Or if they refer to a command on the part of the Church, the new marriage is supposed to take place after the death of the wife who was dismissed." 3

Synod of Elvira (300 CE) issued Canon 9: "A faithful woman who has left an adulterous husband and is marrying another who is faithful, let her be prohibited from marrying; if she has married, let her not receive communion until the man she has left shall have departed this life, unless illness should make this an imperative necessity." 3

The Synod of Arles (314 CE) instructs those young men who had dismissed their wives on grounds of adultery to not remarry. 3


The Second Council of Mileve (416), the Council of Hereford (673), and the Council of Friuli (791 CE) made similar statements. 3

Pope Innocent I wrote: "Your diligence has asked concerning those, also, who, by means of a deed of separation, have contracted another marriage. It is manifest that they are adulterers on both sides." 10

Pope Zacharias wrote: "If any layman shall put away his own wife and marry another, or if he shall marry a woman who has been put away by another man, let him be deprived of communion." 11

The Council of Trent issued two canons during their 24th session:

Canon 5: "If anyone shall say that the bond of matrimony can be dissolved for the cause of heresy, or of injury due to cohabitation, or of willful desertion; let him be anathema."

Canon 7: "If anyone shall say that the Church has erred in having taught, and in teaching that, according to the teaching of the Gospel and the Apostles, the bond of matrimony cannot be dissolved, and that neither party -- not even the innocent, who has given no cause by adultery -- can contract another marriage while the other lives, and that he, or she, commits adultery who puts away an adulterous wife, or husband, and marries another; let him be anathema."

Annulments - in theory:

The proper term for an annulment is "An Ecclesiastical Declaration of Nullity." 12 Such declarations can be issued by a church tribunal to cover marriage and other sacraments.

Divorces are not permitted within the Roman Catholic Church, because valid marriages are considered to be indissoluble. Church canon law 1055 states that any marriage that takes place is legally presumed to be a valid sacrament, and is thus permanent. However, if sufficient convincing evidence can be shown which indicates that it was not a valid marriage, then a Declaration of Nullity may be given. This is, in effect, saying that the marriage never existed; it was not an ecclesial reality. Only after an annulment is granted may the couple be free to marry other people. This requirement is not restricted just to Catholics. A Protestant may marry another Protestant, and later divorce. If one of them wants to marry a Catholic, they must first receive an annulment from the Church for their first marriage.

Even though an annulment implies that no valid marriage occurred, children of that marriage are considered legitimate. (Catechism of the Catholic Church [CCC] 1138 & 1139). An "annulment can't affect children's status retroactively." 13

Church canon law 1057 states that a marriage is brought about by:

1. The consent of the parties (the bride and groom),
2. legitimately manifested,
3. by those qualified according to the law (again, the bride and the groom).

An annulment may be obtained on a number of grounds. Some are listed below:
bullet It may be granted if it can be proven that there was "a defect of consent on the part of one or both ministers [i.e. the bride or groom]. Or, the consent was not legitimately manifested. Or, one or both of the parties may have been incapable according to law to exchange consent." 12

Consent of the parties requires that the bride and groom, at the time of marriage:

Understand the nature of marriage: that it is permanent, that they are to remain monogamous, that they are open to having children, etc.

Not having placed conditions on their marriage, like marrying only if they would live in a certain city, or would have no more than two children.

Be free of mental illnesses -- including latent illnesses that have not been diagnosed -- that might restrict their ability to give consent.

Be free of fraud and deceit.

Be "free of coercion or grave external fear." (CCC, 1628)

An annulment may also be granted "by reason of a defect of form" if it is determined that the officiating priest lacked the proper authority. Alternatively, if two baptized Catholics decide to get married in a civil service by a Justice of the Peace, their marriage is not recognized as valid by the church.
bullet

The bride and groom must have met certain requirements at the time that they married. Some are:

They must be old enough (16 years for the groom; 14 for the bride).

The groom or bride must not be a member of a Catholic religious order.

Neither has lied about the existence of a previous marriage.

The bride and groom are not too closely related, either by direct blood relationship, or adoption, or marriage.

They must have been baptized as Catholics, or have obtained special permission to marry.

The pope may dissolve a marriage that was not consummated.

Annulments - in practice:

The Archdiocese of Boston, reports that a typical annulment takes about one year to complete. It costs about $900 of which the petitioner is expected to pay about half. Contrary to common rumors, the Church loses millions of dollars a year in the granting of annulments. "The process is involved. The Petitioner is asked to submit detailed testimony. The tribunal contacts the former spouse. Witnesses are required. An expert in the field of psychology may be required for an assessment. It is not an easy process. However, it is not impossible either." 12

Most individual Roman Catholics appear to ignore the Church's teachings about remarriage. After divorcing, they often remarry without first having received an annulment. David Willey of the British Broadcasting Corp. stated that the Holy Roman Rota (the Vatican court that handles some annulments) processes about 200 marriage annulments per year, while civil courts in Italy process over 100,000.

Twenty one percent of adult American Catholics have experienced a divorce. 15 This is equal to the rate experienced by Lutherans, Atheists and Agnostics. It is lower than mainline Protestants at 25%, much lower than Baptists at 29%, and a great deal lower than non-denominational Protestants at 34%.

The Archdiocese of Boston estimates that fewer than 20% of the couples that can apply for an annulment do so. Since over 80% of divorced individuals remarry, it is obvious that many Catholics remarry outside the church, and that their new marriages are not recognized by the church.

The trap that some Catholics find themselves:

Couples that obtain a civil divorce and remarry without first obtaining an annulment are denied access to the Sacraments of Penance (a.k.a. Confession) and Holy Eucharist. (Catechism 1650).

They are caught between a rock and a hard place:

If they continue in the new marriage, then they cannot repent of and confess their sins through the Sacraments of Penance, and return to Communion. Meanwhile, their sins are accumulating. Because the church does not recognize their new marriage, it considers every sexual act within the marriage to be a new act of adultery -- a mortal sin. According to the church's teachings, this means that they will not attain Heaven when they die. They will end up being eternally tormented in Hell. 20 There are only two ways of avoiding this state:

To be fortunate enough to not die suddenly (e.g. to not die instantly in a car accident or from a massive heart attack). This way, they might be able to receive the Last Anointing by which their mortal sins are forgiven. Needless to say, this is a risky route to take.

To make an "act of perfect contrition" instead of Confession. But this requires the individual to repent of what the Church considers their sins of adultery, and sincerely intend to never engage in "adultery" in the future.

If they separate from their new spouse, and live alone, and sincerely intend to remain separated unless a annulment is granted, then they can resume their access the Sacraments of Penance and Holy Eucharist. But that would require them to violate their new marriage vows, and terminate their marital relationship. This option often seems profoundly immoral to the couple, particularly if there are children involved.

Judging from the overwhelming percentage of Roman Catholics who never apply for an annulment, it would seem that most have abandoned their idea of mortal sin leading them to Hell. For those Catholics who believe in the teachings of their church, it would seem expedient to apply for an annulment as soon as possible so that they would be free to enter into a new relationship when they wish.

Statement by the Pope directed to Catholic divorce lawyers:

On 2002-JAN-29, Pope John Paul delivered his annual speech before the Holy Roman Rota, the Vatican court that hears marriage annulments. He said that divorce is an "evil" that is "spreading like a plague" through society. He said, in part: "Lawyers, who work freely, should always decline to use their professions for an end that is contrary to justice, like divorce." He repeated the Church's position that: "Marriage is indissoluble..." In an apparent rejection of the validity of secular divorce laws in various political jurisdiction, he said: "...it doesn't make any sense to talk about the 'imposition' of human law, because it should reflect and protect natural and divine law." 17 "The Pope's spokesman, Joaquin Navarro-Valls, said this was the first time the pontiff had explicitly discussed these ideas and described the remarks as 'an application of the general moral principle of not allowing us to cooperate with something that is evil'." 18

Reaction to the pope's statement was mostly negative:

Denise Lester, a specialist in British family law commented that lawyers already work to promote reconciliation where it is possible. She said: "Lawyers should be free to work with the laws of the state. This is a multi-ethnic society where divorce is legal, and lawyers, as servants of the community, should be able to able to carry out their work....The Pope's comments could have an impact on freedom of choice for both lawyers and their clients."

Cesare Rimini, an Italian divorce lawyer is reported as saying: "The laws of the state do not interfere in the laws of the Church, so it would be right if the Church did not interfere in the realm of judges and lawyers."

Right-wing politician Alessandra Mussolini, grand-daughter of the fascist dictator Benito Mussolini, commented: "Divorce, at times, is a salvation because it interrupts a spiral of hate and terror even for children." 17
bullet
Roman Catholic Archbishop Hart of Melbourne, Australia, said that the Pope's remarks did not mean Catholic lawyers and judges were forbidden to take part in divorce cases. Archbishop Hart said that the pope "...doesn't say that. What he is talking about is a change of attitude so that lawyers don't automatically assume that divorce is the answer." 19

Roman Catholic Archbishop Pell of Sydney, said that: "The English translations are clumsy and somewhat misleading on the role of Catholic judges and lawyers in civil divorce proceedings. Catholics judges [and by inference, lawyers] can participate for the common good in divorce proceedings, for example to help ensure the legal rights of all participants, such as the care of children, the protection of inheritances and distribution of property." 19

References:

1. J. Carl Laney, "The Divorce Myth," Bethany House, (1981). Read reviews or order this book safely from Amazon.com online book store
2. H.W. House, Ed., "Divorce and remarriage: Four Christian views," InterVarsity Press, (1990), Page 25. Read reviews or order this book
3.

"Divorce in Moral Theology," New Advent, at: http://www.newadvent.org/cathen/05054c.htm
4. J.B. Lightfoot, trans., "The Shepherd of Hermas," at: http://wesley.nnu.edu/noncanon/fathers/ante-nic/hermas1.htm
5. "The Shepherd of Hermas," Monachos.net, at: http://www.monachos.net/patristics/hermas/index.shtml
6. Justin Martyr, "First Apology," xv, P.G., VI, 349
7. Athenagoras, "Defense for the Christians (Legatio pro Christ)," xxxiii (P.G., VI, 965)
8. Tertullian, "De monogamiâ", c, ix (P.L., II, 991).
9. Clement of Alexandria, "Strom.", II, xxiii (P.G., VIII, 1096).
10. Innocent 1,"Epist. ad Exsuper.", c. vi, n. 12 (P.L., XX, 500).
11. Zacharias, letter to Pepin and the Frankish bishops, 747.
12. Rev. Michael Foster, "Can a marriage be declared null?," Archdiocese of Boston, at: http://www.rcab.org/marriage.html
13. Jennifer M. Paquette, "Catholic Annulment," Beliefnet.com at: http://www.beliefnet.com/story/75/story_7562_1.html#cont
14.

"Christians Are More Likely to Experience Divorce Than Are Non-Christians," Barna Research Ltd., at: http://www.barna.org/cgi-bin/PagePressRelease
15.

"Christians Are More Likely to Experience Divorce Than Are Non-Christians," Barna Research Ltd., at: http://www.barna.org/cgi-bin/PagePressRelease
16.

Roman Catholic Divorce Issues, at: http://www.divorceinfo.com/catholic.htm This essay includes many links to essays on divorce, annulment and remarriage in the Catholic church on other web sites.
17. "Pope tells lawyers to boycott divorce," BBC News, 2002-JAN-29, at: http://newsvote.bbc.co.uk/hi/english
18. Darrin Farrant, "Lawyers oppose Pope on divorce," at: http://www.lapresrupture.qc.ca/cpa
19. "Divorce: Archbishops say Pope's advice mistranslated," Catholic News, at: http://www.cathtelecom.com/news/
20. "Catechism of the Catholic Church: IV. The gravity of sin: Mortal and venial sin, #1856," at: http://www.christusrex.org/www1/CDHN/gravity.html


Copyright © 2002 to 2006 by Ontario Consultants on Religious Tolerance
Originally written: 2002-APR-18
Latest update: 2006-FEB-08
Author: B.A. Robinson