There are many misconceptions surrounding declarations of nullity. You may have heard some of them The process takes years to complete! It costs thousands of dollars! It only matters who you are, or, who you know!
Misconceptions need to be confronted. So let me address some of the more prevalent ones and refute them.
1. Declarations take years to complete - NO.
Tribunal officials begin with the premise that the marriage in question is indeed a valid sacrament. Anything contrary is going to have to be proven. The burden of proof is on the Petitioner. There are certain time limits throughout the proceedings in which individuals have the right to take actions or respond (c. 1465-1467). Cases are tried in the order they are presented (c. 1458). On average, a marriage proceeding before the Boston Metropolitan Tribunal takes approximately one year, as is in accord with the law (c. 1453).
2. Declarations cost thousands of dollars - NO.
There are court costs associated with the processing of trial proceedings (c. 1649). The cost is not a donation to the Church. Rather, it is a fee for services rendered.
There are various fees for differing types of cases. Formal cases involving investigations of a defect of consent are the most common type of cases. Presently (2003) in Boston the estimated cost to a Petitioner (c. 1649.1) of processing this type of investigation is $ 750. This reflects only half of the actual case expenditures, as the archdiocese assumes the other fifty percent of the costs.
There is discretion on the judge's part regarding a reduction of the fee (c. 1649.1). Furthermore, if there is a need to pay in installments, over time, the person is accommodated. The monies support the operation of the church court- salaries and building expenses.
3. It only matters who you are, or, who you know - NO.
It does not matter the name or position of the Petitioner, Respondent or any witness. Everyone is treated with the same procedural rights in law. No one is penalized for being well known. No one is penalized for being unknown. Everyone is treated fairly and in accord with the norm of law. No officer of the court is permitted to take part in a case in which there is a family relationship, close friendship, animosity, or desire to profit or avoid a loss (c. 1448).
4. Declarations render children illegitimate - NO.
A declaration of nullity does not affect the legitimacy of children born of that union. Any statement or belief to the contrary is simply wrong.
The laws of the Catholic Church clearly state that legitimacy is not called into question (cc. 1137 & 1138). Tragically for children, this misconception is too common. For the dignity of our children this fallacy needs to be confronted.
5. Declarations are "Catholic divorce" - NO.
No human power can dissolve a valid, consummated sacramental marriage. This statement is rooted in the church's scriptural, theological and canonical traditions. A declaration of nullity is not a dissolution of marriage. It is not a "church divorce."
Rather, it is a judicial pronouncement that a valid marriage had not been brought about as the faith community had presumed. The law states that marriage is brought about (c. 1057) through: (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).
If a tribunal investigation determines: (1) the consent was defective, then marriage was NOT brought about, (2) if the consent was NOT legitimately manifested, then marriage was NOT brought about, (3) if one or both of the persons was unqualified according to law, then the marriage was NOT brought about.
In each situation there is a judicial determination that marriage had not been brought about as had been presumed. There is no dissolution of a marriage bond.
6. In granting a declaration the Church doesn't care about all I endured in my marriage - NO.
The Church cares a great deal for persons who have suffered in marriage. Petitioners, Respondents and witnesses are treated with pastoral care and sensitivity by tribunal personnel.
In addition, when a declaration is granted, both parties are free to marry again in the Church UNLESS either is restricted from doing so (cc. 1684 & 1685). The right to marry is based in the natural law. However, it is not a limitless right - certain restrictions may be placed upon its exercise (for example, the diriment impediments discussed in a previous part of this series).
A tribunal investigation may surface patterns of physical, sexual, chemical, or emotional abuse. Patterns of self-destructive behavior may also be evident. Individuals may suffer from untreated, though diagnosed, psychological illnesses. These instances, and others, may warrant a restriction regarding a future marriage until the issues are satisfactorily addressed. The good of the individual, future spouse and children, and the sanctity of the sacrament demand this cautionary tool.
7. In granting a declaration the Church doesn't care about all the children endured - NO.
The Church is very concerned for the welfare of the children of divorce. The Church insists that parents do all in their power to provide for the physical, social, cultural, moral and religious upbringing of their children (c. 1136).
Judges admonish parents to fulfill both their civil and ecclesial obligations to children when a declaration of nullity is granted (c. 1689). Parents must also verify that their obligations to children are met before they remarry in the church (c. 1071.1).
8. One court's decision renders a marriage null - NO.
The Church declares a marriage null only after two concordant affirmative decisions. It is incorrect to state that a marriage has been declared null after the decision of one court. Due process involves the decision of the First Instance Court (titled The Metropolitan Tribunal here in Boston) and the decision of an Appellate level Court (either Provincial or Roman). A case is pending under procedural law until the Appellate Court's decision brings about a final judgment (cc. 1682-1684).
9. Declarations are always granted - NO.
It is important for divorced individuals to know that the Church affords them the legal right to petition for a declaration of nullity (cc. 1476 & 1674). No one has a right to a declaration of nullity, but rather, the right exists to petition for one.
The burden of proof is on the Petitioner. The legal presumption is that the marriage in question is valid (c. 1060). Certainly, if a marriage has ended in divorce, something has gone wrong. The tribunal investigation seeks to determine if anything was defective at the start. The answer may be in the affirmative. It also may be in the negative.
10. Only a marriage of short duration, without children, can be declared null - NO.
As stated, the Church affords any divorced person the right to petition for a declaration of nullity. The length of the marriage or presence of children does not prevent the acceptance of a petition.
However, with that said, the longer the duration of marriage the more difficult it is to overturn the presumption. Every case requires witness testimony. The presumption of validity cannot be overturned on the testimony of one party. There must be corroborative proof (c. 1678-1680).
So common sense indicates that the further you move away from the moment of consent, the more difficult it is to overturn the presumption of validity. Witnesses have died or are unlocatable, or, they may no longer remember the circumstances as the wedding happened long ago.
Nonetheless, as the Church affords individuals the right to petition, individuals should exercise this right.
11. Prior marriages of non-Catholics [whether Christian or unbaptized] are invalid - NO.
These marriages are valid marriages. If both ministers (bride and groom) are baptized Christians, they are valid sacramental marriages. Non-Catholics are not bound by the church laws which govern the form of marriage for Catholics. Obviously the faith community would not expect two Presbyterians to approach a Catholic priest to witness their exchange of vows. As long as they exchange consent, their marriage is considered a valid sacrament by the Catholic Church.
If two Jews marry before the rabbi that is considered a valid (non-sacramental) marriage by the Catholic Church. Any question of invalidity, or dissolution, must come before a church tribunal.
So if two Presbyterians marry and subsequently divorce, and the divorced man now wishes to marry a Catholic woman, he is not free to do so. He would only become free if the Church issued a declaration of nullity for his first marriage. For once the Catholic Church recognizes a marriage as a valid sacrament, any question of invalidity must come before a church tribunal.
This type of petition would occur if the subsequent marriage of the Protestant or non-baptized person involved a Catholic. The faith community at large is concerned for its individual members, as the marriage of any member of the Church affects all the members (c. 1059). Nearly twenty percent of formal marriage cases pending before the Boston Tribunal pertain to marriages of non-Catholics.
12. It's easy to get a declaration in the United States - NO.
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.
The misconception that it is thought to be easy may rest in the increased number of declarations over the past twenty years. In 1968 the Boston tribunal processed 10 cases involving defective consent. In 1996 the same tribunal processed over 700 of these cases. The increase is due to a substantial change in the procedural law of the church. Cases are heard locally rather than in Rome. They may also be handled by single judges, rather than a tribunal panel of three judges. However, the sentence of every case is sent to the Appeal Court and reviewed by a tribunal, i.e., a panel of three judges.
13. There are too many declarations granted in the United States - NO.
The United States vs. other countries
In the last twenty years, the numbers of declarations are much higher in this country than they had been in the past. Yet this is due to the fact that the procedural laws governing marriage cases were expanded in the late 1960's. Cases no longer had to go to Rome. They could be adjudicated locally. The appellate system was also somewhat streamlined. Furthermore, Roman jurisprudence was expanded in the light of the teaching of the Second Vatican Council. Cases could be heard on new grounds of jurisprudence.
Tribunals across the United States are operative so that individuals may vindicate their rights. The bishops of our country have invested personnel and resources to ensure the church's jurisprudence and procedural law are fulfilled. Unfortunately, such an investment in justice is not as evident in other parts of the world. This is why the numbers in the United States appear high. In fact they are skewed.
Cultural factors in the United States
There has been much written in the faith community that First World countries - especially the United States - have fallen into the trap of materialism and hedonism. The American culture is commonly referred to as pagan.
Once we admit to this we must also acknowledge the consequences. One obvious consequence is that the ministers of the sacrament of marriage live in this culture. They are formed and raised in this culture. This is a culture that says nothing is permanent. This is a culture that promotes sexual excess. This is a culture that perpetuates a contraceptive mentality. Our children and youth are bombarded with these pagan, cultural values.
The Church presumes that at the time of marriage, our ministers are committing to permanence, fidelity, and conjugal love. That is the presumption. One can readily see in this culture how the presumption could be overturned subsequent to a wedding ceremony.
The greater number of declarations are therefore due to procedural law changes, an expansion of jurisprudence, and cultural changes in our society. It's interesting to note however that fewer than twenty percent of those who can petition, do petition. The vast majority of divorced Catholics do not.
Since over eighty percent of divorced individuals remarry, one can only assume most do so outside of the faith community. It is this reality which undermines the faith community, not the superficial notion that there are too many declarations of nullity.
With the continued commitment of bishops, canon lawyers and dedicated personnel who staff them, tribunals in the United States will continue to administer the church's justice. The legal work of these Christians ultimately fulfills the supreme law of the Church, the salvation of souls (c. 1752).