Where Do You Stand With The Catholic Church?

The Dilemma of Divorced Catholics

by Father John Catoir, J.C.D.

My heart goes out to the many good people who have suffered the tragic breakup of their marriage. This article is an attempt to answer the questions most frequently asked of priests who work in the marriage tribunals throughout the country.

I would advise you not to be afraid of the Church's rules and regulations. We have to set up guidelines for the good of society, but we realize that individuals are saved one-by-one. Sometimes the general rules set up to achieve justice fall short of the target.

The late Bishop Fulton Sheen explained that there are two kinds of truth: "An outer truth is one we master, e.g., the distance of the sun from the earth. An inner truth is one that masters us; e.g., God is merciful to the penitent. Outer truths of physics and chemistry come to us without desire, sorrow, pity or emotion. Inner truths carry some emotions with them and influence behavior." More about this distinction in the section on "internal forum."

I received my doctorate in Canon Law in 1964, and was in charge of me marriage tribunal of the Diocese of Paterson, NJ for nearly ten years. Presently I serve part-time as a presiding judge on the court of second instance for my diocese.

Over the years I have been asked hundreds of questions concerning annulments in me Catholic Church, but the ones most frequently asked are as follows:

Why is the Church so strict in its marriage discipline?

What is a Church Annulment and how much does it cost?

What are the grounds for obtaining an annulment? And finally,

What is the internal forum?

It would take a book to answer these questions fully, but I will do the best I can in the space allotted.

WHY IS THE CHURCH SO STRICT ON MARRIAGE?

The Roman Catholic Church teaches that a new marriage cannot be initiated while an existing marriage still exists.

Whether or not you agree with the Catholic Church's teaching, at least know that it is based on a time-honored interpretation of the words of Jesus, "What therefore God has joined together let no man put asunder." ( Matthew 19:6).

A civil divorce puts a marriage asunder and bestows the right to remarry. The Church does not acknowledge the right of civil authorities to dispense from vows taken in church.

Divorce has become commonplace in all walks of society, even in marriages where there are children. Some parents put their own happiness before the good of me children. Others are more conscientious, and terminate their marriage to save the children from a dysfunctional family situation. In either case the children suffer. The Church tries to minimize this suffering.

Divorce contributes to as many as 3 out of every 4 teen suicides and 4 out of 5 psychiatric admissions. The Children of divorce are much more likely to drop out of school, have premarital sex, and become pregnant outside of marriage than youngsters in intact families.

Young adults from ages 18 to 22 who are from divorced families are twice as likely to have poor relationships with their parents. They show higher levels of emotional distress as young adults than those from intact families.

Our culture has so trivialized sexuality in the last thirty years the divorce rate has doubled, and the number of divorced adults has quadrupled. This does not mean that all divorcees are bad people, not at all. Many of them are saints-in-training who gave more than 100% to make their marriages work. Sadly that effort was not enough because, as everyone knows, it takes two to tango. It should be noted that divorced Catholics are not excommunicated from the Church. They are Catholics in good standing and they have the right to receive Holy Communion as long as they have not entered an uncanonical marriage.

The only way a divorced Catholic can remarry lawfully in the Church is by obtaining a Church annulment.

WHAT IS A CHURCH ANNULMENT?

An ecclesiastic annulment is a declaration by the Church that a marriage which was thought to be valid, was not legally binding. This might be because of some defect in the consent given on the day of the wedding, or possibly a defect in the psychological capacity of one of the parties.

When an annulment is granted the Church is not putting aside a valid union, nor is it saying that there never was a marriage. The union certainly was a sociological fact, and the memory of it may be cherished, but the legal contract on which it was based was found to be invalid.

Canon Law declares that all the children born of an annulled marriage are legitimate. The unfortunate designation "illegitimate " is hardly used any more, but it is technically reserved for those born out of wedlock, which is certainly not the case in an annulled marriage.

When a doubt about the validity of a marriage arises, you have to present your petition to the tribunal in the diocese where you are living, or the diocese where the marriage took place. The local pastor can help you contact the competent tribunal.

If you need help identifying the grounds for an annulment, the tribunal may assign an advocate to help you. There are priests, as well as laymen and laywomen who are trained to perform this task. You have the right to go to any canon lawyer of your choice to help you with your petition. It is best to find someone in your area.

If you have grounds and witnesses to support your allegations the tribunal will accept your case for trial. About 20% of the cases presented are never accepted for trial because of insufficient grounds or a lack of evidence. This prescreening process explains in part the high percentage of affirmative decisions. Tribunals only take cases that have a good chance of succeeding.

The Church's judicial system is human, and therefore it is imperfect. We attempt to bring compassion to each situation in our search for the truth, but it may not always look that way. In order to help people resolve their doubts about the validity of their marriages we have to collect the evidence and conduct a trial.

This is a not a trial by jury, but a trial by tribunal, i.e., by a panel of judges. This is the same system used in a military court of justice. Usually three priest-judges form the tribunal, and they decide the case by majority decision. When there is a shortage of judges, one priest may preside instead of three.

If the court of first instance grants the annulment, that decision must be upheld by the appeal court in another diocese. This is called the court of second instance. You need two concurring affirmative decisions before the annulment is final.

If there is a split decision between the two lower courts, the case can be appealed to the Roman Rota for a final resolution.

WHAT ARE THE USUAL GROUNDS FOR AN ANNULMENT?

The grounds most frequently presented to the courts are as follows.

1) A lack of due discretion.

Suppose a Catholic woman married hurriedly because she was pregnant. She soon finds that her husband refuses to go to work. He sits around the house drinking beer all day while she supports the family with an outside job. In addition she does all the shopping, cooking and childcare. After a few years of this she decides she has had enough, and begins divorce proceedings.

Someone advises her to approach the marriage tribunal for an annulment. She does so alleging that she lacked the discretion necessary to realize that her husband was a deadbeat who made a false promises. He might also have a personality disorder. Her husband promised to take care of his family, but he did not have the will or the character to do so. She claims that if she had known before the marriage what kind of a misfit he really was she never would have married him in haste.

If she can prove these allegations in court, the tribunal will most likely determine that true marital consent was missing in this union.

2) Defective consent.

This amounts to fraud going to the heart of the contract. It occurs when one of the parties deceives the other in one of the three essential properties of marriage: permanence, exclusivity, and the right to have children. The Church will only marry a couple if both parties intend to enter a permanent union, an exclusive union, and one which is open to procreation. To lie about this is to commit a serious fraud, and the marriage is ipso facto invalid.

Take the case of a man who promised to enter into an exclusive union, but who kept a mistress, before during and after the marriage. If the wife can prove it, the judges will declare the marriage null and void because the man never intended an exclusive union. An intention to deceive made prior to the marriage is more than adultery or human weakness.

To avoid collusion between a husband and a wife in presenting a made-up story just to get a Church annulment, the Church has the Defender of the Bond to uphold the validity of the marriage against all challenges. This officer of the court argues against the granting of an annulment, unless of course it is an open and shut case.

3) Psychic incapacity.

Those who are incapable of accepting and fulfilling the burdens and obligations of marriage are not qualified to marry. You cannot make a promise to do something you are incapable of doing. For instance, a paranoid schizophrenic may appear to be normal at the time of the wedding, but when his illness develops fully the marriage fails.

A latent psychological condition can affect the consent retroactively. Some of these cases involve psychotics, but not all. A serious neurosis can also affect a person's capacity to give a valid consent.

Such cases are becoming more common. Neil Clark Warren, a psychologist and marriage counselor, estimates that in 75% of all divorces at least one party is emotionally unhealthy. In countries where there is a vigorous drug subculture Warren's claim is not an exaggeration.

American tribunal officials learned about this new approach to jurisprudence from the Sacred Roman Rota. I remember when I was the Judicial Vicar in the Diocese of Paterson in the early seventies. I began reading the decisions of the Roman Rota on a regular basis. I was amazed to discover that they were finding extreme immaturity to be grounds for an annulment.

Decisions of the Roman Rota are only made available (with names deleted) ten years after they are issued. The Rota had been granting annulments in cases involving neurotics and the American Church was ten years behind in its jurisprudence.

4) Informal Cases

a. Ligamen Cases. There are other less complicated annulment cases where it is not necessary to go to trial. For instance, if it is discovered that a man was validly married to someone else before he married the petitioner, ipso facto the new marriage will be declared null and void. The word "Ligamen," comes from the Latin, meaning "a prior valid bond of marriage." These cases are settled rather quickly in an administrative process involving little more than documentary evidence.

b. Defect of Form. The same type of administrative process is used when Catholics marry outside of the Church. This is called a declaration of nullity based on a "defect of form." A Catholic couple must observe the proper canonical form of marriage by exchanging vows before a priest and two witnesses in a Catholic Church. When a Catholic fails to obey this requirement the marriage is considered to be invalid. These "defect of form" cases account for more than half of all the annulments granted in the Catholic Church.

HOW MUCH DOES AN ANNULMENT COST?

If you are really poor it costs nothing. If you have limited means you pay as much of me fee as you can. If you have the means you pay the full tribunal fee The cost ranges from $500 to $1000 depending on the locality.

There is much misunderstanding concerning annulment fees. Some people say that you can buy an annulment in the Church. If that were true, which it is not, why do we have such an elaborate scheme to thwart any form of corruption. You would have to bribe six different judges in two different dioceses to pull it off I would not advise even thinking about it. Any judge can throw the case out at any point of the process. Daring to tamper with the justice system is a crime in the Church as well as the state.

Does the Church make any money off the tribunal system? Not a cent. In the US alone, in one year, tribunals were $14,000,000 in the red. This ministry was never a money making proposition, but how many times have I heard people spreading the rumor that they did not get their annulment because they were unwilling to pay the huge fees involved. More likely than not, their case was rejected because they did not have any credible evidence to support it. Tribunal fees are minimal compared to civil divorce fees.

Once an annulment is obtained both parties to the marriage are free to remarry in the Catholic Church. However if one of the parties is the culpable cause of the invalidity, as in the case of the man with the mistress, he will not be allowed to remarry in the church unless it can be verified by some means that he has reformed.

WHAT IS THE INTERNAL FORUM?

The internal forum is the forum of conscience. The external forum is the ecclesiastical court of law.

Occasionally petitioners are afraid of dredging up the history of their failed marriage. Some fear that their former spouse might do them harm. Whatever the reason they cannot bring themselves to proceed with a formal case.

Then there are those cases where because of some error in judgment made by a priest or a tribunal official justice was not rendered. Justice delayed is justice denied.

If a person believes his or her prior marriage is invalid, but cannot prove it they should seek counsel. Many Catholics have divorced and later remarried before a Justice of the Peace without having consulted anyone, and without having obtained a Church annulment.

This is a violation of Canon law, and they are presumed to be living in sin. Suppose however that the legal presumption of the validity of the first was incorrect. Suppose there was a defective intention which could not be proved.

Rare though it may be, such a thing can happen. Following one's conscience may be justified in some circumstances. Every marriage is different. It is impossible to judge me state of another person's soul based on the known facts of a case. Sometimes things are not as they appear. Sometimes the so-called sinners are saints and the upstanding saints turn out to be sinners.

Someone who wakes up from the nightmare of a disastrous marriage in a state of disorientation may not understand the laws of the Church. The victim of abuse and violence seldom has the objectivity of a trained professional. It takes a long time to recover from a nightmare.

If such a person begins to heal, and for the first time finds true love, it is not difficult to see how the new relationship can be perceived to be a gift from God. The couple begins living together, feeling absolutely clean before God. They try for an annulment but are told they have no case or they cannot prove their allegations. What are they to do?

They may decide to consult a priest confessor or counselor for advice. The priest may encourage them to follow their conscience if the facts seem to support their moral convictions. The priest may not marry them because this would be simulating the sacrament, but he can encourage them to trust a well-formed and certain conscience.

Pope John Paul II in his Apostolic Exhortation, Familiaris Consortio, has forbidden couples from receiving the Eucharist if they are not validly married. Many of them receive anyway believing that their second marriage is not a sin but a blessing.

Such a reception of Holy Communion violates the letter of the law, but freedom of conscience comes into play here. The natural law right to marry must be weighed against the doubt about the validity of the first marriage. Very few priests would turn anyone away from receiving the Eucharist. The burden is on the person receiving to do what they think is the right thing.

What about the Magisterium?

Isn't a Catholic is bound to form his or her conscience according to the teaching of the Church's highest teaching authority? Yes, but what exactly does that mean?

Theologian and scholar Father Avery Dulles S.J., now Cardinal Dulles, gave a talk in 1991 to Cardinals, archbishops and bishops from all over North America. He explained the relationship between conscience and the magisterium in this way: "There is no perfect identity between conscience and the magisterium of the Church. Conscience is an interior, not an outer, voice...The magisterium fulfills the aspirations of conscience by enabling it to find the moral good at which it aims...For members of the Church, the magisterium is one, but only one, informant of conscience." (Proceedings of me Tenth Bishops' Workshop, Dallas Texas, p. 142).

In other words there are times when an informed conscience is not a conformed conscience. The Church urges us to obey and conform, but this is not always possible. The lawmaker cannot envision every set of circumstances when writing a law. Some people fall through the cracks and the internal forum is a safety net for them.

The Church upholds freedom of conscience to the extent that even if a person is in error, he or she must obey their conscience. Outsiders should respect the sincere and well-formed conscience of another person even if they disagree with it.

In my book"Where Do You Stand With The Church The Dilemma of Divorced Catholics," (Alba House, NY, 1996) I go into all these questions in greater detail.

I hope this brief outline is of help to you as you try to understand the Church's discipline on marriage. The internal forum is not a license to do as you will, it is a sacred faculty to help you discern the truth as you stand before God.

One day we will all be judged on the way we have loved one another. This essential truth of the Gospel must be weighed carefully in all the decisions we make in life. I wish you well in all that you do and I pray that God will bless you always.