The case for zero annulments

Zippy makes similar points for strictness in the annulment process here and here (although he would not agree with all of my points below).  In the interest of pushing the Overton window, I’m going to throw out the most extreme position–abolish annulments entirely–which is still more sensible than the current direction.  The zero-annulment policy, I claim, should be, if not our actual policy, the default policy, any deviation from which must be strenuously argued.  Anyone proposing a law to allow annulment under such-and-such circumstance must demonstrate convincingly that it cannot be abused by an ecclesiastic legal system with strong incentives to laxity, that it will not give false impressions to a laity with strong inclinations to form such impressions, and so forth.

With a very stringent annulment policy, some marriages that are genuinely not valid will not be recognized as such by the Church, leading the Church to place unnecessary burdens on some people–namely that they cannot marry anyone other than their current putative spouses.  With a very liberal annulment policy, some marriages that were validly contracted will be falsely declared null by the Church, so that the spouses will feel authorized to enter into what are in fact adulterous unions, bringing spiritual harm to them, confusion to the faithful, and ill-use to the sacraments.  Which way to err?  It is clear to me that we must error strongly to the side of presumptive validity.  In fact, a good case can be made that the Church should never grant annulments, even though there presumably are some invalid marriages out there.

  1. Some have suggested that many marriages are invalid because Catholics don’t understand what they’re getting into when they marry in the Church.  A lax annulment policy fosters such confusion.  The certain consequence of the pope’s recent annulment streamlining is to convince most Catholics that the Church does not in fact regard marriage as indissoluble, that annulment is just a legal fiction to dissolve unwanted unions.  As this belief spreads, there will be many more invalid unions (assuming, for the moment, that this sort of misunderstanding does invalidate a marriage), many more couples stuck in unknowing fornication.  If the Church simply refused to grant annulments, in a generation everyone would know that getting married in the Church is an irrevocable thing, and so anyone who chose to do so would do so validly (or, at least, the marriage wouldn’t be invalid for ignorance of Church teaching).  To summarize this point, we must consider the message a given policy sends.  I, for one, do not think it a fault of the previous system that even valid annulments should take a great deal of time and effort to process.  It should be clear to everyone that something extraordinary is being asked of the Church.  In any case, a pious Catholic who learns that he has abused a sacrament, even inadvertently, should see the appropriateness of a multi-year purification process before jumping in again.
  2. The American experience proves that ecclesiastic courts can’t withstand the pressure to grant annulments liberally.  In most annulment cases, there are two parties, their friends, and prospective new “spouses” who want a declaration of nullity, and no one pushing for the other outcome.  Any rules in place, no matter how strictly orthodox, will be bent into unrestricted laxity.  The Church simply cannot trust herself with any wiggle room.
  3. Even in the individual case, it is less damaging to incorrectly refuse an annulment than to incorrectly grant one.  An unnecessary burden is less spiritually hazardous than a license to sin.
  4. Common sense rebels against the idea that many people who’ve gone through a wedding ceremony and years thinking they are married may one day discover that they are in fact not married.  Is getting married really so hard?  If so, shouldn’t we all abstain from sleeping with those whom we believe to be our wives, because there’s a fifty-fifty chance that we would actually be fornicating?  Wouldn’t such scrupulosity be madness?  But why do we all recognize it as madness?  Because we all recognize that the ecclesiastic regime of mass annulment is BS.  Possibly very few unnecessary burdens would exist in a no-annulment regime.

36 Responses

  1. It’s funny that those who rail hardest against ‘legalism’ construct massive and absurd legal edifices and artifices to try and force the existence of loopholes around what our Lord said repeatedly, a sort of Eruv for marriages. Do they really think we can hoodwink God?

    It’s funny that those who rail hardest against a supposed latter-day Pharisaism indulge in hypocrisy that would make the Pharisees blush, divorcing practice from (ostensible) belief, leading the little ones into sin and declaring the love they owe abandoned spouses Korban.

    It’s perhaps unsurprising that the heirs of Tetzel are insistent upon thrusting another abuse that cries out to God in exchange for money.

    It’s funny that those who are most fawning towards the Eastern schismatics are the ones who invent titles for our Lord (“Mitis Iudex”) that are tremendously at odds with not only the Catholic but also the Eastern understanding of Him (unless I’m mistaken, they pray for “a good defense at the awesome judgement seat of Christ” in their Divine Liturgy of St. John Chrysostom).

    It’s funny that the supposed champions of episcopal collegiality and fraternity are the ones who implement or cheerlead abuses of papal authority that would make the “Renaissance princes” they claim to abhor have second thoughts.

    It’s funny that the supposed champions of synodality construct a latrocinium to try and jam their abuses down everyone else’s throats.

    I need to think less and to fast and pray more, because I’m not halfway done with this rant and already I’m hopping mad. Can a layman file heresy charges against a sitting cardinal with the CDF?

  2. I heartily agree with your proposal, though with a couple of caveats:

    First, you’d also have to deal with the current rules regarding defects of canonical form; that is, a Catholic who marries outside the Church without a dispensation from his or her bishop. Annulments to these marriages are granted through the “documentary process” and are pretty much automatic, since the Church does not recognize these marriages as valid. I suspect a good number of Catholics are already abusing this rule to enter into “trial marriages” that can either be regularized later on if things work out, or annulled if they don’t. If your reform were to be implemented, I expect we’d see an increase in the number of these marriages in order to circumvent the new rules.

    Second, there is the only form of “annulment” which has explicit Scriptural warrant: the Pauline Privilege, in which a natural marriage between two non-baptized people is dissolved if one party to the marriage wishes to enter the Church and the other refuses to stay in the marriage as a result. Full disclosure: I have a personal interest in this, having been granted the dissolution of a foolish (and thankfully childless) youthful marriage upon my entry into the Church. In the intervening years, my ex-wife had remarried and had a family with another man thousands of miles away, so there was no question of reconciliation. How would you deal with these situations, which, of course, are technically not annulments at all?

  3. Peasant:

    It’s funny that those who rail hardest against ‘legalism’ construct massive and absurd legal edifices and artifices to try and force the existence of loopholes around what our Lord said repeatedly, a sort of Eruv for marriages.

    It is classic liberal behavior to project their own flaws onto others. I think it is because freethinkers are the most provincially narrow minded people ever born of woman.

  4. I don’t agree with Zippy’s opinion about rampant invalidity, it is directly contrary to canon law*. That said, I agree with everything else you’ve written. Marriage annulments should be like ordination annulments (something so rare that there’s a good chance you haven’t heard of it). Of course defect of form and Pauline privilege are special cases, as Murray notes.

    *Can. 1099 Error concerning the unity or indissolubility or sacramental dignity of marriage does not vitiate matrimonial consent provided that it does not determine the will.

  5. AR:

    … Zippy’s opinion about rampant invalidity, it is directly contrary to canon law …

    Thanks for posting the cite, but my view isn’t contrary to it.

    The question is how frequently error concerning unity or indissolubility determines the will. Stated colloquially, how many have expressly thought to themselves “I’ll marry him, and as long as he doesn’t beat me or cheat we’ll be together forever”, or the like, in the lead up to taking vows.

  6. I’m not a canon lawyer, but I don’t think that would invalidate it. I think “determine the will” means determine whether or not one would marry, i.e. “If divorce were illegal I wouldn’t get married”.

  7. Informative post. One phrase I thought of: “taking up your cross.” Can’t an unnecessary burden be a cross we’re meant to bear and therefore a blessing not a hazard?

    Murray, thanks for explaining verses that had me confused. One question: what does it mean when Paul indicates that his latter counsel (on mixed marriages) comes from him and not the Lord? The first part of 1 Corinthians 7:12 is what I’m referring to.

  8. AR:
    I’m open to correction on the point as well, but at least we’ve determined that our disagreement is a disagreement between you and me, not between me and canon law.

  9. Bruce,

    According to this page on the Pauline Privilege by a canon lawyer, it means pretty much what it says: Paul himself made this allowance, but the Church has always recognized it as binding.

    I got in contact with my ex-wife while I was preparing the annulment petition to ask her if she’d be willing to cooperate with the tribunal. She was, but in the course of the conversation she informed me that her family had been occasionally attending a local Catholic church for the “spirituality”, or somesuch. I guess she never got baptized as a result of their visits, because it looks like it would have complicated things mightily if she had!

  10. Interesting. Paul’s apostolic power to bind and loose + the divine inspiration of scripture makes the Church pretty confident in this teaching, I assume.
    You’d think the traditional teaching would be very comforting to a would-be bride. “I will/must always be faithful to our marriage no matter what you do to me.” You’d think that would make her melt.
    I was explaining the teaching to my wife this way the other day. I could see her fear – that someday our daughter might have to stay married to an unfaithful husband.

  11. Peasant wrote: “Do they really think we can hoodwink God?”

    We can’t see into other people’s hearts but I would guess many of them don’t really believe in God. I think they want what the homosexuals want – official and public approval/validation of their choice. In this case, they want it from the Church – the pope, their bishop, their priest, the laity, etc. – the social organization they belong to.

  12. Murray,

    I’m resolutely uninterested in all this lawyer stuff myself, but let me give you what I think is the proper mentality for deciding things. Someone comes to me with a question. He’s been, to all appearances, married before. Now he wants to marry another woman. First, go into default mode. Think to yourself that the answer will be “no”; be psychologically prepared to tell the guy he’s contemplating adultery. Then consider the particulars. Can we have a rule allowing this case that couldn’t be exploited to wreck the whole system? For marriages outside the faith, I’m a little less worried, because it’s objective, nothing to do with what anyone was thinking or feeling at the time. This limits the possibility for abuse. I don’t really like the idea of remarriage even in the Pauline case–I’d be happier just saying that all natural marriages are always indissoluble–but I guess this is an exception I’m stuck with, and the only thing to do is keep it from growing.

  13. Upon reflection, it was probably a mistake to include Pauline Privilege cases in my questions, since these are properly speaking not annulments at all, and probably make up a small fraction of cases. But I think the canonical form question is a live one, not just a matter of lawyerly semantics.

    Canonist Ed Peters has argued for a reform of the law so that (as I understand it) even marriages contracted by a Catholic outside the Church would be presumed valid. He enumerates several points which could be used to justify a reform of the law in this area, including the following:

    4. Every year, thousands of Catholics (just in the USA) are declared free of the consequences of marriages that the Church holds non-Catholics to observe, solely because of the Catholic’s failure (whether from honest ignorance, flat defiance, or a range of attitudes in between) to comply with canonical form. What, in the 1960s, only a few Catholics knew how to manipulate to their advantage, is now often seized upon by duplicitous laity, sometimes even with the encouragement of conniving clerics, so as to enter “trial marriages” just to “see how things work out”, knowing they have a get-out-of-marriage-free card to play (even if the other party is unaware of the loop-hole).

    This would seem to have the effect you desire: the majority of current annulment petitions would be cut off at the knees, and Catholics would have no incentive to take advantage of an easily annulled “trial marriage”.

  14. Without backbone it all seems academic. Annulments have made sense at various points in history for extreme circumstances (a forced marriage, etc.). The problem isn’t that we don’t understand annulments and divorce, it’s that we do and are ignoring what we understand.

  15. “With a very liberal annulment policy, some marriages that were validly contracted will be falsely declared null by the Church”

    Is It possible for Church to err in this matter? Isn’t there a dogma to the effect that the Church can not err in determining the validity of any given marriage?

  16. “Nuptias non concubitus, sed consensus facit” [It is not sleeping together, but agreement that makes marriage] says Ulpian in the Digest (D. 50.17.30 Ulpianus 36 ad sab)

    Ulpian was a better jurist than any pope who has ever lived, except, arguably, Innocent IV and Benedict XIV

    It is worth noting that in a letter, written in 866 by Pope St Nicholas I (858–67), in response to a series of enquiries he had received from Boris I, Prince of Bulgaria, he says “According to the laws (leges), the consent of those whose union is arranged should be sufficient. If that alone is absent, all the other solemnities, even including coition, are in vain, as the great teacher John Chrysostom attests, who says: ‘Not intercourse but will makes marriage’” (Homilies on Matthew 32) (PL 119, no. 97, pp. 978–1016 at 980) It is obvious that they are citing Ulpian.

    Now, by “consensus,” literally a “meeting of minds,” the Roman jurists make it abundantly clear that they mean the parties must mutually agree, unequivocally, seriously and deliberately and with a genuine purpose immediately to establish the relation of husband and wife.

    The great protection against abuse of process is to be found in Can. 1643 Numquam transeunt in rem iudicatam causae de statu personarum, haud exceptis causis de coniugum separatione. [Cases concerning the status of persons, including cases concerning the separation of spouses, never become res iudicata]. No one would be at pains fraudulently to obtain a decree of nullity against which anyone with an interest can reclaim at any time. Such decrees are effectual only when no one in the whole world considers themselves prejudiced by them.

  17. “I don’t really like the idea of remarriage even in the Pauline case–I’d be happier just saying that all natural marriages are always indissoluble”

    I’m an idiot so far be it for me to interpret scripture vs. the Church. But is it even clear that Paul is granting permission to remarry? He doesn’t add his usual qualification that you can remarry but only “in the Lord.” He is usually consistent from epistle to epistle. Does not under “bondage” mean the marriage can be dissolved or does it mean the person doesn’t have to and shouldn’t be drug out of the Church by the spouse?

  18. “Is It possible for Church to err in this matter? Isn’t there a dogma to the effect that the Church can not err in determining the validity of any given marriage?”

    Yes to your first question, no to your second. I saw an interview with Cardinal Burke on EWTN that covered this. A declaration of nullity (when done correctly) provides moral certitude (i.e. enough probability to act on) not absolute certitude. Only God knows for sure.
    I assume this means that the declaration is a opinion (my word, not Cardinal Burke’s).

  19. “Is It possible for Church to err in this matter? Isn’t there a dogma to the effect that the Church can not err in determining the validity of any given marriage?”

    The Church cannot err with respect to clarifying the contents of the deposit of faith. The deposit of faith was sealed with the death of the last apostle. The validity of any particular marriage today necessarily postdates this, hence is a matter of prudential judgment.

  20. Bruce, it seems to me that if the natural marriage is dissolved “in favor of the Faith” then the marriage no longer exists and that the parties are free to remarry. I suffer from a certain degree of scrupulosity, so it’s a great comfort to know that the Church has for many centuries held this to be the case. If I had gone through a regular post-Vatican II First World annulment, I imagine I would suffer regular pangs of doubt about the process.

    Some statistics from the Canon Law Society of America: in 2011, 42 (out of 195 total) US dioceses approved between 99-100% of the annulment petitions that came before them. The “best” three dioceses approved 65-70% of annulment petitions. Going from memory, the diocese of L.A. alone found only one case out of some 800-odd to be “contrary to nullity”.

  21. Nitpicking here, but in the case of Pauline Privilege, the marriage is only actually dissolved upon the remarriage of the Christian spouse. So the non-Christian spouse could not validly remarry until the Christian spouse had, and the Christian spouse could not enter a religious order. Also, the Christian spouse would have a moral right to recall his non-Christian spouse, until such time as he/she (the Christian spouse) remarried.

  22. Some thoughts that seem to be eluding some people.
    Annulments are given out saying that what was on the surface viewed as a valid sacrament wasn’t. This can happen to any sacrament, not just marriage. There is supposed to be a presumption of being valid.

    There are actually several items which make quick work of the Matrimony annulment process, and several that truly require investigation. The first category includes, but is not limited to obvious, easily documentable items like, prior marriage (polygamy), failure to consummate, defect of form (not witnessed by a priest, I suppose polygamy fits here), probably force/kidnap marriages etc.
    The second category all go to more of a mental state – full knowledge and consent. These are obviously the ones that would be the ones for “zero tolerance policy.” Frankly today, under the US Tribunals’ general policy, Henery 8’s marriage to Catherine would have been annulled (he was strong armed/forced into it). Although His marriage to Anne (and others) would have been valid, as the execution of her solves the ‘until death’ part, and would have freed his actions. It could be easily argued he was then guilty of murder in addition to his adultery.

  23. I suspect that, even if Catherine had dropped dead of natural causes and Henry’s marriage to Anne had been valid, the diriment of crimen from executing Anne would have prevented Henry from validly marrying Jane Seymour.

  24. Not only are annulments not infallible, but the Church has studiously refrained from infallible pronouncements on the impediments to marriage.

    Curiously, the prohibited degrees were a favourite topic of the Reformers, who accused the Roman Church of multiplying impediments and dispensations from them, both for the fees they produced and to furnish grounds of annulment. In a rare display of unanimity, the Reformers taught that the only prohibited degrees were those contained in Leviticus and that these were indispensible.

    The Council of Trent declared, “If any one says, that those degrees only of consanguinity and affinity, which are set down in Leviticus, can hinder matrimony from being contracted, and dissolve it when contracted; and that the Church cannot dispense in some of those degrees, or establish that others may hinder and dissolve it ; let him be anathema.” The Council did not state which of the Levitical degrees were dispensable; a question on which there was no consensus.

  25. Henry VIII’s marriage to Anne Boleyn would have been invalid in any event, on the grounds of affinity arising from his carnal knowledge of her sister Mary. At that time, carnal knowledge, as well as marriage, created affinity.

  26. “The second category all go to more of a mental state – full knowledge and consent…”

    The temporal courts seal with such questions every day. Contracts and dispositions are reduced or improbated on the grounds of minority, insanity, force and fear, fraud, facility and circumvention or because they are colourable transactions between conjunct and confident persons, intended to impose on others. Now, what are these but so many ways of establishing want of consent?

    As for marriage, the great Scottish judge, Lord O’Hagan, laid down a very clear rulel : “In all inquiries of this sort, I apprehend the true rule is not to regard singly and apart the one transaction on which reliance is placed as constituting the marriage. It is necessary to exercise “a large discourse of reason looking both before and after,” and from all the antecedents and all the consequents to ascertain the true mind and purpose of the parties whose intention determines the character of their act.” (Robertson v Stewart 1875 2 RHL 80 at p 108)

    Scottish courts have no difficulty in applying that rule.

    In Akram v Akram (1979 SLT (Notes) 87) Lord Dunpark, the Lord Ordinary, said, “Scots civil law has always applied the consensual principle to the contract of marriage so that, if it be proved that, notwithstanding the trappings of a formal marriage ceremony, the parties thereto did not exchange their consent for the purpose of obtaining married status, the ceremony must be denied the legal effect which it was designed to produce.”

    In Hakeem v Hussein (2003 SLT 515) Lord Penrose, giving the judgment of the Inner House (Court of Appeal) said “formal compliance with the procedural requirements of regular marriage is not conclusive of the contraction of a valid marriage”

    Our problem is not with the law; it is that we do not have ecclesiastical judges of the same calibre as a typical Lord of Council and Session, who has spent his life as an advocate and a judge dealing with complex commercial and revenue cases. That is the real disgrace..

  27. > Our problem is not with the law; it is that we do not have ecclesiastical judges of the same calibre as a typical Lord of Council and Session, who has spent his life as an advocate and a judge dealing with complex commercial and revenue cases.

    On the other hand, in commercial and revenue cases, is there not usually a party whose interest is served by either possible decision? The fair comparison would be to how well secular courts uphold contracts that both parties would like to dissolve, if they ever even attempt to do such a thing.

  28. Above Proph made what seemed like an important point:

    “The deposit of faith was sealed with the death of the last apostle. The validity of any particular marriage today necessarily postdates this, hence is a matter of prudential judgment.”

    Does this mean that canonization of recent saints is prudential judgment and not infallible?

  29. On the other hand, in commercial and revenue cases, is there not usually a party whose interest is served by either possible decision? The fair comparison would be to how well secular courts uphold contracts that both parties would like to dissolve, if they ever even attempt to do such a thing.

    There is a little subfield of economic theory dealing with this problem, called re-negotiation-proof contracts. It sometimes happens that you want, ex ante, to write a contract and to have that contract enforced even if, ex post, both parties would like to renegotiate/dissolve/etc.

    For example, suppose Bonald is DrBill’s employer. Bonald invests in a new venture which he pays DrBill to run for him. DrBill gains a lot of new knowledge (on Bonald’s dime) running this venture. So, Bonald, being wise, writes into DrBill’s contract that DrBill may not open a competing venture in the same field. Bonald’s new venture fails, and DrBill’s employment therefore ends. DrBill offers to pay Bonald $100 (or more, or a royalty, or whatever) to let him out of the no-compete agreement. After the venture fails, it is in Bonald’s interest to do this.

    However, Bonald before-the-venture-fails wants to prevent Bonald after-the-venture-fails from doing this. Why? Because if DrBill knows that Bonald is going to let him out of the no-compete, DrBill has very poor incentives to actually try to make the venture succeed. Why not learn on Bonald’s dime, let the venture fail (in a way that Bonald does not know is DrBill’s fault), and then open his own?

    I’ve idly thought that the human emotion of spite is perhaps a solution to this problem. It seems kind of likely that Bonald would be pretty pissed at DrBill for screwing up his venture and might not let him out of the contract even though it is in his material self-interest to do so.

    Courts don’t generally enforce contracts which nobody wants enforced. That’s why this little subfield of economic theory exists.

  30. Dr Bill, I am in an economic class and what surprises me is the strong belief in individual self-interest which is in stark opposition to the biological reality that humans are pack animals not solitary ones. Individualism is for tigers and bears the same way communism us for bees and ants. Both ideologies are right, it’s just that the ideologues for both have the species wrong.

  31. Heh. There is a great book by the renegade economists Herbert Gintis and Samuel Bowles:

    http://press.princeton.edu/titles/9474.html

    Though I basically agree with what you are saying, I recommend you put aside that objection long enough to learn the tools economists have developed. Imperfect though they may be and often missaplied though they may be, they are surprisingly useful in many situations.

    Don’ let any “conservatives” see you with Bowles and Gintis’s work, though. They’re soooooocialists.

  32. Stephen writes:

    I agree with your point that it beggars belief to say that, according to Pope Francis or Cardinal Kasper, up to a half of all marriages are invalid. Anybody who goes through a marriage ceremony knows what he is getting into. The whole point of the public ceremony is to make you think of the consequences of the ceremony before you go through it.

    As a lawyer who dabbles in criminal defense, the marriage ceremony reminds me of what you go through when you plead guilty to a crime. There is a ritual to what the judge says and does (it’s actually called a “ceremony”) and everything is laid out for the defendant before he answers for himself whether he understands what he is doing when he pleads guilty. The idea that perhaps up to half of all criminal defendants enter guilty pleas without proper understanding or consent is just ludicrous. They may regret their decision later–while sitting in prison with nothing better to do than to file frivolous appeals–but they had a sufficient understanding of what they were getting into when they plead guilty. It is extremely difficult to convince a judge that a guilty plea should be withdrawn for lack of consent.

    So, why should a canonical tribunal find that a marriage is null and void for lack of consent except in the rarest of cases? As far as I’ve seen, in the US, no one can get married without waiting for at least six months. Anybody who has a wedding ceremony hanging over his head six months knows what he is getting into. Just as you don’t need to be a lawyer in order to enter a valid guilty plea, you don’t need to be a theologian or a saint to enter into a valid marriage.

    I just figured it was worth pointing out the value of the ceremony as evidence of presumptive validity because I haven’t seen anybody else mention it. But it’s something I deal with on a regular basis and seems obvious to me now. And I think the Church, in her earlier wisdom, instituted the marriage ceremony precisely to make it nearly impossible for people to back out of their decisions later.

    Anyway, those are my two cents. Keep up the good work!

  33. Stephen

    No one disputes that the ceremony is evidence of consent, merely that it is by no means conclusive.

    That is what Lord Hagan meant when he said: “In all inquiries of this sort, I apprehend the true rule is not to regard singly and apart the one transaction on which reliance is placed as constituting the marriage. It is necessary to exercise “a large discourse of reason looking both before and after,” and from all the antecedents and all the consequents to ascertain the true mind and purpose of the parties whose intention determines the character of their act.” (Robertson v Stewart 1875 2 RHL 80 at p 108)

  34. […] Bonald makes The case for zero annulments. […]

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