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Questions and Answers about Annulments, Nullity and Divorce

Fourty-one questions and answers about nullity, divorce, marriage and the annulment process.

1. What is a declaration of nullity?

A declaration of nullity (sometimes referred to as an “annulment”) is a statement by the Catholic Church that at the time two people exchanged marital consent, there was something essential missing that prevented a valid marriage bond from being formed. The three essential things that are necessary for valid marital consent is the capacity of the parties for making such a commitment and fulfilling the obligations of marriage, their intention to enter into marriage as the Church understands marriage, and their knowledge both of marriage itself and of the person they are marrying.

Most marriages are entered into validly. But when there is a serious deficiency in one of these three areas, the marriage is considered invalid. This is not a moral judgement on the parties themselves, since many times both parties exchanged their consent with the best of intentions. Nor is it a process that seeks to lay blame on one or other of the parties for the failure of the marriage. Rather, a declaration of nullity is a statement of fact concerning the marriage bond itself.

2. Who needs a declaration of nullity?

The Catholic Church teaches that it is the consent of the parties that creates the marital bond. Therefore, whenever two people have exchanged marital consent, the Church has to look into the matter to see if a valid marriage bond has been formed. This is regardless of whether the parties were Catholic or non-Catholic, baptized or non-baptized, married in a religious ceremony or married in a civil ceremony. If a person has been married and divorced more than once, additional inquiries will need to be made by the Tribunal.

3. Who can apply for a declaration of nullity?

Either party to the marriage can apply for a declaration of nullity. However, before the Church can consider a case, it must be clear that there is no possibility for reconciliation between the parties. A civil divorce is considered sufficient proof that the parties cannot be reconciled.

4. What marriages are considered valid by the Catholic Church?

In considering whether a marriage bond is valid, the Church looks at five things: the form of the marriage; the freedom of the parties; their capacity for entering into marriage; their knowledge of marriage and of each other; and their intentions in entering into marriage. A marriage could be declared invalid if something is lacking in any one of these areas.

5. What is meant by the “form of marriage”?

This refers to marriages of members of the Catholic or OrthodoxChurches. In order for the marriages of Catholics or the Orthodox to be considered valid by the Catholic Church, they must take place in a certain way. For Catholics, this means the consent of the parties must be exchanged in the presence of a Catholic priest or deacon who has the necessary jurisdiction, and in the presence of two witnesses. (At times, and for sufficient reason, the Catholic party can obtain a dispensation so that, if they are marrying someone who is not Catholic, their marriage can take place in another religious setting.) For the Orthodox, their marriages must take place in the Orthodox Church with the blessing of the sacred minister.

It is only members of the Catholic and the OrthodoxChurches who have to marry in a certain way. All others – whether baptized or not – when they marry among themselves can marry in whatever way they choose and have it recognized by the Catholic Church as a valid marriage. This is because the Church believes that it is the consent of the parties that creates the marriage bond. We can make further demands upon members of the Catholic Church as to how their marriages are celebrated, and we can recognize the requirements of the Orthodox Church for the celebration of marriage, but we cannot place those same requirements on those who are not members of our faith community.

6. How is a marriage declared invalid for a “lack of canonical form”?

Catholics or the Orthodox whose marriages are invalid because of lack of proper form can be declared ‘free to marry’ through an administrative process. This normally takes place when one of the parties wants to enter into a subsequent marriage. The request for Declaration of Freedom to Marry is normally sent in by the parish priest with the rest of the marriage papers. The parish priest should fill out a form called “Application for a Declaration of Freedom to Marry Due to Lack of Canonical Form” and submit it to the Office of the Tribunal, along with the baptismal certificate of the Catholic or Orthodox party, a copy of the full marriage certificate and divorce decree from the previous marriages.

A typical administrative Declaration of Freedom to Marry in the Diocese of Wollongong would take less than one month to obtain, once the necessary papers have been sent to the Office of the Tribunal.

7. What is meant by “canonical freedom to marry”?

In order to marry validly in the Catholic Church, each party must be free from any canonical impediments. “Impediments” are things which disqualify a person from marrying. Some of these impediments are considered to be of divine law, and therefore cannot be dispensed by the Church; while others are considered to be of merely ecclesiastical law, and therefore do not bind those who are not members of the Catholic Church, or can be dispensed for those who are members of the Catholic Church.

The canonical impediments are found in canons 1083 to 1094 of the Code of Canon Law. They prohibit marriages of people who are under a certain age (c. 1083), who suffer from perpetual impotence (c. 1084), who are held to a prior bond of marriage (c. 1085), who have not been baptized (c. 1086), who are in holy orders (c. 1087) or have made their perpetual religious vows (c. 1088), who have committed certain actions (canons 1089 and 1090), or who are related in a certain way (canons 1091 to 1094).

8. How is a marriage declared invalid because of a “lack of canonical freedom to marry”?

The process that is followed in these cases is called a “summary judicial process.” It involves gathering the necessary documents and other information that demonstrate that a canonical impediment existed at the time of the marriage and that it had not been dispensed; contacting the other party to see if that person has any objection to the documents that have been presented; and then having a tribunal judge determine whether indeed there was an un-dispensed canonical impediment present at the time the parties exchanged consent.

A typical case involving the summary judicial process in the Diocese of Wollongong takes approximately four months to complete. The case is begun by contacting the Office of the Tribunal.

9. What is meant by “lack of capacity to enter into marriage”?

In order to enter into marriage validly, each party must be capable of the necessary deliberation for making a decision that involves the whole self for their whole life. Each person must also be capable psychologically for assuming the essential obligations of marriage as defined by the Church.

At times, a person may not have the use of reason, either because of a permanent mental disability (which renders them incapable of acting on their own) or because of a temporary mental disability (such as alcohol or other drug intoxication which renders the person incapable of acting on their own).

At other times, a person may gravely lack the necessary discretion of judgement about the rights and duties of marriage, either because of severe immaturity or because of an inability to deliberate properly about the rights and duties of marriage.

At still other times, a person may not be able to assume the essential obligations of marriage due to psychological causes which render the person incapable of taking on something which the Church considers to be essential to marriage (a permanent relationship, a faithful relationship, a self-giving relationship, etc.). These psychological causes include such things as psychotic disorders, personality disorders, or various addictions to things like alcohol or other drugs, gambling, etc.

10. How is a marriage declared null because of a “lack of capacity” for marriage?

The Catholic Church comes to a decision about these cases through a formal judicial process, which is described below. The case is begun by contacting the Office of the Tribunal.

11. What is meant by “lack of knowledge” in entering into marriage?

In order to enter into marriage validly, each party must be aware of what marriage is and of who their partner is. If a person does not have even the most rudimentary knowledge of what the Church understands marriage to be, or if they are in error about something essential in the person they are marrying, or are defrauded into marriage by their partner, the marriage can be declared null.

12. How is a marriage declared null because of “lack of knowledge” for marriage?

The Catholic Church comes to a decision about these cases through a formal judicial process, which is described below. The case is begun by contacting the Office of the Tribunal.

13. What is meant by a “lack of intention” for entering into marriage?

In order to enter into marriage validly, each party must intend to do what the Church says occurs in marriage. That is, each of the parties must intend to enter into a union which is permanent, which is faithful, which involves the procreation and education of children, and which involves the care of the spouse. Each person must make this commitment freely and without any conditions attached to it.

14. How is a marriage declared null because of a “lack of intention”?

The Catholic Church comes to a decision about these cases through a formal judicial process, which is described below. The case is begun by contacting the Office of the Tribunal.

15. What is the “formal judicial process”?

The “formal judicial process” is a legal process in the Catholic Church governed by the Code of Canon Law. It has no civil effects within Australia, since its sole purpose is to determine whether a person is considered free to enter into marriage in the Catholic Church. It does not affect a person’s relationship to civil society, or to any other organization other than the Catholic Church.

Because it is a legal process, it follows certain steps. It also is designed to respect the rights of both parties, and allow both parties to have their say. Its purpose is to uncover the truth about a particular relationship, and then to see how that relationship measures up against the Church’s understanding of marriage.

16. What steps are involved in the “formal judicial process” in the Diocese of Wollongong?

The process begins with one of the parties to the marriage petitioning the Tribunal to determine whether their marriage is considered to be valid in the eyes of the Church. This is done by contacting the Office of the Tribunal. If you live outside the Diocese of Wollongong, you should contact the Office of the Tribunal in your diocese.

The remainder of the process can be diagrammed as follows:

Screening of Application by Tribunal

· Does the Tribunal have jurisdiction?

(If the marriage took place in New South Wales or the Australian Capital Territory, or if the other party lives here, the Tribunal has jurisdiction over the case. If only the plaintiff [petitioner] lives here, we can seek permission, under certain conditions, to hear the case from the place where the other party lives.)

Personal written testimony of Plaintiff

· Description of relationship with former spouse [Respondent]

· Description of Plaintiff’s family history

· Description of former spouse’s family history

Names and addresses of people who will describe what they saw in the two parties and in the relationship

Interview with an Auditor, an officer of the Tribunal to assist you in presenting your case to the Tribunal.

Acceptance or Rejection of the Petition

· If petition is accepted, notification of both parties

· Request that the former spouse participate

Gathering of testimony

· Oral testimony of witnesses

· Oral or written testimony of the former spouse, if willing to participate

· Possible meeting with Tribunal Psychologist

· Counselling records, if available

Conclusion of the case

· Reading of testimony, if desired, before the Judge at the Office of the Tribunal

· Opinions of Advocates, if any appointed

· Opinion of the Defender of the Bond

· Decision of the Tribunal

Second Instance Court

· Opinion of another Defender of the Bond

· Review of case by panel of three judges

· Confirmation of decision or re-opening of case

17. What must be proven in order to declare a marriage null?

It must be proven that at the time of consent an essential element of marriage was lacking even though it may not have been obvious to the couple at that time. Please note that adultery, or other serious problems taking place during the marriage, are not necessarily sufficient proof that a marriage was invalid at its inception.

18. What is the role of an Auditor?

Auditors are specially trained and appointed lay persons, deacons, and priests throughout the Church who conduct personal interviews with Plaintiffs, Respondents and witnesses. They help in the preparation of the case and insure that the forms and other data are complete. They will answer any pertinent questions.

19. Does the former spouse have to be contacted?

Yes. At the time the Plaintiff is notified that the case has been accepted, the judge will inform the former spouse (the respondent) and will offer him or her an opportunity to participate. The non-cooperation of the former spouse usually does not hinder the progress of the case. However, the cooperation of the former spouse is invariably helpful to the process.

20. What if the address of the former spouse is unknown?

Church law requires that the former spouse be contacted. However, if the former spouse’s address is unknown, it must be established that the plaintiff has used reasonable means to ascertain his or her specific place of residence. It is left to the discretion of the judge to determine the adequacy of the plaintiff’s efforts on a case-by-case basis. We also use the Internet to try to obtain information about a former spouse. If the former spouse’s whereabouts remains unknown, an advocate will usually be appointed to act on his or her behalf.

21. What happens if the former spouse refuses to cooperate?

The responsibility of the Tribunal is to inform the former spouse of his or her rights in a marriage nullity case. The choice to exercise those rights or not belongs with the person. In requesting a declaration of nullity, the plaintiff has asked the Church a question: Is my marriage considered valid by the Church? The Church therefore is obliged to give the person an answer. The Tribunal attempts to gather as much information as possible in order to give an answer which is as well-informed as possible. But if information is not available to the Tribunal, it still must give the plaintiff an answer.

Therefore, if the other party chooses not to exercise his or her rights in the case, the Tribunal will proceed with the case nonetheless. Lack of cooperation by the other party is unfortunate, since it deprives the Tribunal of valuable information. But the Tribunal cannot force people to testify against their will, and must reach a decision based upon the information it has been able to collect.

22. Is the testimony kept confidential?

All the information gathered in the course of this investigation is considered confidential. This information is not made available except as authorized by Church law. Church law states that both parties do have access to the information collected unless the judge determines that access to a particular part of the information may cause serious harm, or unless the information is protected by civil statute. The purpose of this access is to defend one’s position for or against the ecclesiastical declaration of nullity. No one else has access to the information contained in the case.

The addresses of the parties are never given out, and all contact with the parties is done through the Tribunal. At no time do the parties have to appear before the Tribunal together.

23. What is the role of a witness in a marriage nullity case?

A witness is a person who can provide the tribunal with information about the parties and their relationship. Ideally, a witness is able to provide information about the time leading up to the marriage, the marriage itself, and the reasons for the break-up of the marriage.

24. Who can be asked to serve as a witness?

Most persons, including family members, are eligible witnesses. Specifically excluded by Church law are confessors. In general, the Tribunal does not accept adolescent or adult children of the parties, a current civil spouse or a prospective spouse of either party to offer testimony unless there is some special reason. The judge will contact the witnesses by mail usually within three weeks of accepting the petition. They are required to appear at an Office of the Tribunal or other Church office, e.g. presbytery, CatholicCare Office – if they do not live in the Diocese of Wollongong, they will be asked to appear for an interview at a Church office close to their home. The plaintiff will be asked to provide the names of three or more witnesses who will be able to provide substantive testimony about the marriage. The respondent has the right to provide the names of witnesses.

It is important that the plaintiff makes sure that the witnesses have agreed to cooperate prior to submitting their names to the Tribunal. Failure of the witnesses to cooperate in due time is one of the main reasons for a delay in the processing of a case.

25. What other information is part of the case?

The judge may collect any other information which might be helpful in preparing a case, such as statements from clinicians, hospitals, institutions, law enforcement agencies, etc. In order to obtain this information legitimately, the Tribunal will provide proper release forms to be signed by the plaintiff at the time of the plaintiff’s interview. When necessary, the former spouse of the plaintiff may also be asked to sign such forms.

The judge may also ask the plaintiff to come to the Tribunal for an additional interview in order to clarify some parts of the plaintiff’s testimony. The judge may also ask the plaintiff to come in for an interview with one of our Tribunal psychologists, depending on the grounds of the case. The purpose of the interview with the psychologist is to obtain needed information about the personality of the plaintiff in order to come to a decision on the case.

The judge will also try to obtain the testimony of the respondent, either in person or through a written statement, and see if the respondent also wishes to submit the names of witnesses.

Both parties have exactly the same rights in a marriage nullity case: the right to give testimony; the right to submit the names of witnesses; the right to be represented by an advocate; the right to review the material in the case; and the right to appeal the decision of the first tribunal.

After an adequate amount of testimony has been presented, and depending on the grounds the judge has determined for the case, the judge may ask a psychologist or other professional for an opinion regarding the case.

26. What happens once all the testimony is collected in a case?

The judge will inform both parties that they have two weeks to submit any additional evidence. At that time, both parties have a right to review the case materials at the Tribunal. A party must appear at the Tribunal offices during normal hours of operation if he or she wishes to review the material in the case. Material is never sent to the party. The person who wishes to review the material in the case will also be asked to sign a promise of confidentiality and an understanding that the material being read is solely for purpose of defending oneself in an ecclesiastical process. The person will also be expected to make a statement to the Tribunal concerning what has been read.

If an advocate has been appointed, he or she will submit a brief. Before the case is decided, it is submitted to the defender of the bond for his or her observations. The defender of the bond has the task of arguing for the validity of the marriage and insuring that Church law has been observed during the investigation.

27. When is an affirmative decision given?

An affirmative decision is given when there is sufficient evidence in the case to indicate that at the time of the marriage one or both parties lacked the necessary capacity, knowledge, or intention for entering marriage. Church law presumes that the marriage is valid, so it is only when sufficient evidence is presented to the contrary that this presumption can be overturned and a marriage can be declared null.

In reaching a decision, the judge has the benefit not only of the testimony in the case, but also the opinions of advocates, experts in various fields, the defender of the bond, and in some cases, other judges. Thus the judge does not work alone on the case. There are many other people who contribute to the presiding judge’s decision.

28. When is a negative decision reached?

Church law presumes that all marriages properly celebrated are valid. The plaintiff must overturn this presumption by offering convincing evidence that the marriage was invalid from the beginning. It is not enough to prove that problems developed within the marriage, which eventually led to the civil divorce. The plaintiff must demonstrate how at least one of the parties lacked the necessary capacity, knowledge, or intention at the time marital consent was exchanged. This proof must be based on something more than just the opinion of one or both parties that the marriage in question was null. It must also be proven that what was lacking at the time of the marriage was related to the nature of marriage and was serious enough to render the marriage invalid. Almost all marriages experience difficulties; some of these difficulties make it impossible for the couple to remain together. In order for a marriage to be considered invalid, however, it must be shown that the problems made married life impossible, rather than just difficult.

29. Is the decision of the first [NSW] Tribunal final?

No. Every affirmative decision must be reviewed by a legitimately designated Second Instance Court. Either party may add a personal appeal to the review. A negative decision can be appealed if one of the parties wishes to do so.

30. How are decisions appealed?

The Office of the Tribunal will notify the parties when a decision has been reached. If either party is aggrieved by the decision, he or she is asked to contact the judge in writing within a certain period of time. The person has the option of either appealing the case to the Second Instance Court [in Australia] or to the Tribunal of the Roman Rota.

31. How does the Second Instance Court work?

If an affirmative decision has been reached by the NSW Tribunal, the case will again be reviewed by a Defender of the Bond for the Second Instance Court and a panel of three judges (usually from Queensland or Victoria). The judges can either confirm the decision of the NSW Tribunal, or ask to have the case re-opened and re-heard. After the Second Instance Court has concluded its work, it will inform the NSW Tribunal of its decision. Both parties will be informed of this decision.

If a negative decision has been reached by the NSW Tribunal, one of the parties would have to appeal that decision in order for it to be heard by the Second Instance Court.

32. What happens if the Second Instance Court reverses the decision of the NSW Tribunal?

In the event that the Second Instance Court has reversed the decision of the NSW Tribunal, the case can be appealed to another tribunal. This would normally be the Tribunal of the Roman Rota, in this case, the highest court of appeal in the Church.

33. If an affirmative decision is confirmed by the Second Instance Court, are both parties free to marry in the Catholic Church?

Yes, but sometimes with certain other requirements. A declaration of nullity means that the previous marriage is not an obstacle for either party to enter a new marriage in the Catholic Church. However, because of the trauma associated with divorce, in some cases the judge will recommend that one or both parties engage in a program of counselling before attempting a new marriage. In other cases, the Second Instance Court may issue a prohibition, which requires consultation between a pastoral minister [priest or deacon] and a representative of the Tribunal some months before another marriage is scheduled to be celebrated in the Catholic Church. A prohibition is placed in those cases where there is serious concern whether a person is currently capable of entering a valid union or has the proper attitudes toward the essential obligations of marriage.

34. If a marriage is declared null, does it mean that the marriage never existed?

Not exactly. It means it did not exist in the way the Church says that marriages exist. A declaration of nullity does not deny that a relationship existed. It simply states that the relationship which existed was not what the Church means by marriage.

35. If a marriage is declared null, are the children considered illegitimate?

No. Church law specifically states that children born of a marriage which at its beginning appeared to be valid are still considered legitimate, even if later on the marriage is declared null. The decision of the Tribunal has no effect on the civil norms which govern child support, alimony, and visitation. It also does not affect the moral obligations which both parties took on in their relationship. A parent remains a parent, regardless of civil divorce or ecclesiastical annulment. There are certain moral obligations which must be fulfilled.

36. How long does the formal judicial process take?

Each petition is dealt with individually, so it is not possible to specify how long the process will last. Generally, a decision is reached within one year of the judge’s acceptance of the case. Nevertheless, in no case can a decision or its date of issue be guaranteed. Moreover, no priest, deacon, or other parish minister is free to set a date for marriage until it is clear that both parties are free to marry. It is only if the Tribunal gives an affirmative decision, and this decision is confirmed by the Second Instance Court that a wedding date can be set with a parish.

37. Is there a fee for the formal judicial process?

There is a pre-set fee of $750 for a formal case. Once the case has been accepted by one of the judges, we ask the plaintiff to assume the charge of $750, which is only part of the total cost for handling the case to the Church. This amount is discussed in the meeting with the Tribunal officer. In cases of financial difficulty, the plaintiff will be given an opportunity to ask for a reduction or total waiver of the fee. No one will be refused a decision because of an inability to pay all or part of the cost of the case.

38. Besides declaring a marriage null, are there other ways of dealing with marriage cases?

Yes. Rather than being declared null, a marriage could be dissolved by the Pauline Privilege (for marriages in which neither party had been baptized), the Petrine Privilege (in which at least one of the parties had not been baptized), or because the marriage was never consummated or because the presumed death of the former spouse. The application for these procedures is the same as for the formal judicial process. Once we receive the application, a member of the tribunal staff will be in contact with the plaintiff regarding the handling of this case.

39. What is the “Pauline Privilege”?

The Pauline Privilege is a dissolution of marriage in which both parties to a previous marriage were non-baptized throughout the entire duration of their married life. It can be requested when one of the parties either wishes Christian baptism or has been baptized Christian and the other party remains unbaptized. These cases remain here in the Wollongong Office of the Tribunal, and are decided by the Bishop of Wollongong or a judge appointed by him.

40. What is the “Petrine Privilege”?

A Petrine Privilege or Privilege of the Faith is a dissolution of marriage in which at least one of the parties to a previous marriage was non-baptized throughout the entire duration of their married life. If the plaintiff is the non-baptized party or was baptized in another Christian church, he or she must either wish to be baptized or received into the Catholic Church, or seek to marry a baptized, practicing Catholic. If the plaintiff is a baptized Catholic who was married to a non-baptized person, he or she must either wish to enter into marriage with a baptized Christian, or promise to enter marriage with a baptized Christian in the future. Privilege of the Faith cases involve a special petition to the Holy Father and are decided in Rome.

41. What other ways does the Diocese of Wollongong minister to those who have divorced?

The Diocese has a number of different programs for those who have divorced. These are offered through the CatholicCare offices

  • Wednesday, 19 March 2014
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