Fifteen Myths About Catholic Annulments
One interesting side-effect of the recent synod on the family in Rome is that media reports have laid bare the fact that a real lack of clarity still exists among many people — both inside and outside the Church – about the Catholic declaration of nullity (“annulment”).
Benedict Nguyen, a canon lawyer in Naples, Florida, recently sat down with Regina Magazine to discuss Catholic annulments and shed some light on what is actually going on when the Church examines and declares that a marriage is invalid.
Myth #1: An annulment is a Catholic divorce.
It is not a Catholic divorce – there is no such thing. The Church in this process is not ending or terminating the marriage bond. Because of this, the term “annulment” is actually a misnomer. In fact, the term never appears in the Code of Canon Law.
Myth #2: Annulments are just treated like Catholic ‘divorces’ with a different name.
No. A “declaration of nullity” is a determination by the proper Church authority that an act of marrying was null. That is, when a man and a woman tried to get married, there was an essential necessary element that was lacking thus making their act of marrying invalid. In other words, it is a determination that a marriage bond was not entered into validly by one or both of the parties and thus never established from the beginning.
Myth #3: An annulment pins the blame on the guilty party.
No. It is not a process to determine guilt or sin or to assess blame. It does not determine a “winner” or a “loser.” Rather, it is a fact-finding process.
Myth #4: An annulment makes children illegitimate.
Not true. In most countries, like the United States, there are no civil effects on property, assets, legitimacy of children, etc. Furthermore, canons 1137 and 1139 are clear that children born of a marriage in which at least one party entered it honestly (called a “putative” marriage in canon 1061 §3) are legitimate under canon law. A declaration of nullity simply does not change this.
Myth #5: An annulment determines whether a marriage was ‘sacramental.’
God created marriage to be a natural institution between a man and a woman. Jesus Christ, through His Church, raised the marriage bond between two baptized persons to the level of a sacrament, that is, to be a channel of sanctifying grace. This is a beautiful reality, however, the sacramentality of a marriage is not what a declaration of nullity is trying to determine.
Myth #6: The Church does not consider non-Christians to be validly married.
Not true. Non-Christians can and do marry validly, but when (and only when) two baptized persons establish a marriage bond validly, Christ has chosen to make that valid marriage bond also sacramental, that is, being one of the seven Sacraments by which His sanctifying grace is poured out.
Myth #7: Annulments are granted without much investigation these days.
Again, not true. This conclusion is reached only after the appropriate ecclesiastical procedures are followed. These procedures, developed by the Church over centuries of pastoral experience, are designed to gather evidence as objectively as possible.
Unlike civil judicial procedures, the Church’s process is not an adversarial process with a winner and a loser. Rather it is a fact-finding process to help the tribunal judges determine if one of the essential elements necessary for a valid act of marrying by the parties was lacking.
Myth #8: Annulments are granted on the basis of pretty flimsy evidence.
No. Canon law requires explicitly that a “declaration of nullity” conclusion must be reached to “moral certainty” (cf. canon 1608) and not just that it was “probably” or “must have been” so. If the judges are unable to reach moral certainty, a declaration of nullity is not issued and the presumption of the validity of the marriage continues (cf. canon 1060).
Myth #9: Bishops or tribunals can ‘make up’ new grounds to declare marriages null.
Not at all. It must be stated clearly that in order for an ecclesiastical tribunal to declare an act of marrying null from the beginning, it must have lacked a specific necessary element which the Church’s law has strictly identified as being necessary for validity (cf. canon 10). No one, including the tribunal judges or even the diocesan bishop, can make up new grounds upon which a declaration of nullity is based.
Myth #10: Being ‘too young’ to marry does not make a marriage invalid.
Not true. The specific elements necessary for a valid act of marrying are divided into three categories of consideration, and the first category is whether the parties had the requisite capacity to marry. For this category, there are 12-13 specific grounds listed in canons 1083-1094 and include requirements such as being at least of age (canon 1083), not being already married (canon 1085), not being in holy orders or vows (canons 1087-1088), etc.
Myth #11: If a person marries without intending to remain faithful, this does not make their marriage invalid.
Also not true. This falls under the second category, which is whether the parties had the proper consent to marry. There are about 12-15 of these grounds listed predominantly in canons 1095-1107 and include specific things such as whether a party lacks the use of reason or left out of the marital consent an essential element or property of marriage such as the intention to be faithful, to permanence, and being open to having children.
Myth #12: If a Catholic marries outside of the Church’s requirements, this does not make their marriage invalid.
Untrue. This falls under the third category — which binds if at least one of the parties is Catholic — whether the parties married according to the canonical form of marriage required by the Church. Dating from around the time of the Council of Trent, the elements for Catholic canonical form are now found mainly in canon 1108 and include the requirements of marrying before a validly delegated Catholic minister, two witnesses, and, under normal circumstances, following the Catholic Rite of Marriage.
Myth #13: Tribunals are pretty lax these days, and there is very little oversight on their decisions.
Actually, the opposite is the case if a tribunal is applying canon law correctly. Catholics need to understand that each of these categories has specific requirements that must be followed by the tribunal judges, and a declaration of nullity cannot be issued unless one of these elements are morally certain to be have been lacking at the time of the attempted act of marrying.
Yet, even if a tribunal reaches moral certainty that a particular act of marrying was null, objectivity in the process is valued so much so that an appellate tribunal is required to review the case (cf. canon 1682). Only after a conforming affirmative decision is issued from the appellate tribunal can the process be said to be completed and a declaration of nullity issued. Parties are also always free to appeal to the Roman Rota.
Myth #14: The Church should not allow people to apply for annulments.
Since marriage is a natural and a supernatural reality, everyone has the right to approach the Church via her tribunals to request a clarification of his or her marital status in the eyes of the Church. In addition, everyone who goes through the process has a right to a canon lawyer to assist them. To be clear, though everyone has the right to request an investigation into the validity of one’s marriage, no one has a right to an affirmative or a negative decision. The decision must be based on the truth of the evidence reached to moral certainty.
Myth #15: Catholics don’t really need to understand all this Church legal stuff.
On the contrary, today more than ever, it is necessary that Catholics have a good grasp of what and why this process is what it is. Without a good understanding of marriage and what a so-called “annulment” really is, there is a true danger of more confusion when parties petition the Church for a possible declaration of nullity or when calls are made from various quarters in the Church to reform the “annulment” procedure.
Benedict Nguyen is a canon and civil lawyer and is the Communications Director and Director of the Office Sacred Worship for the Diocese of Venice in Florida. He also serves as an Assistant Professor of Pastoral Theology for the Institute for Pastoral Theology of Ave Maria University.