The annulment argument: a quick guide to the two sides

There are basically two groups agitating for annulment reform, one saying that there are too many annulments, the other saying that there are too few. Let me suggest that (a) the first group is mistaken if it thinks the annulment problem lies in the annulment process (ie, Book VII of the 1983 Code and Dignitas connubii) and (b) the second group seeks not so much reform of the annulment process as its effective abolishment.

The first group (those holding that there are too many annulments), can scarcely suggest any procedural reforms (short of requiring tribunals to stamp DENIED on every annulment petition) for nothing about current canon and special law makes declaring marriage nullity easy. Under current ecclesiastical law, nullity must be proven, on specific grounds, based on sworn declarations and testimony, over the arguments of an independent officer, and confirmed on appeal. There are, that I can see, no gaps in the process through which marriage cases may slip quietly but wrongly into nullity. Not even the oft-reviled Canon 1095 (the “psychological” canon upon which most annulments around the world are based) can be written off as a mere legislative novelty for it articulates (as best positive law can) jurisprudence developed by the Roman Rota itself over the last 60 or 70 years.

No, the objections of the first group to the number of annulments being declared is, I suggest, not to the annulment process but to the people running that process. Tribunal officers are, it is alleged, too naive, too heterodox, or just too lazy to reach sound decisions on nullity petitions; they treat annulments as tickets to a second chance at happiness owed to people who care enough to fill out the forms. How exactly members of this first group can reach their conclusion without extended experience in tribunal work and without adverting to the cascade of evidence that five decades of social collapse in the West and a concomitant collapse of catechetical and canonical work in the Church is wreaking exactly the disastrous effects on real people trying to enter real marriages that the Church has always warned about, escapes me. Nevertheless that is essentially their claim: the process needs no major reform, processors do.

Neither can the second group (those holding that there are too few annulments) credibly point to specific reforms of the annulment process for (with two exceptions noted below) every phase of the current annulment process is required by natural law to serve the ends of justice (and, as Pope St. John Paul II repeatedly reminded us, the annulment process is about justice—not mercy, not charity, not warm fuzzy feelings, but justice); to eliminate any of these steps would be to gut the unavoidably juridic nature of the annulment process. Natural law requires that presumptions (here, of validity) be overturned only for specific reasons (here, grounds) demonstrated by objective information (here, declarations and testimony) weighed by independent minds (here, judges) subject to review by superiors (here, appeal). Remove any of these steps and, whatever ‘process’ one is left with, it’s not a legal one. Thus I say, push proponents of the second school to be clear, and what most of them must admit seeking is the “de-juridicization” of the annulment process. It’s their right, of course, to make such a proposal, but one should not confuse calls tantamount to elimination of a process with calls for reform of a process. More about that call, below.

First, though, it must be acknowledged that two aspects of the current annulment process are not required by natural law to achieve justice, namely, the defender of the bond (c. 1432) and mandatory appeal (c. 1682). These two requirements could be dropped without altering the juridic nature of the annulment process to the point of unrecognizability and, if adopted, would likely speed up the process and raise the number of affirmative results. But the defender of the bond was instituted by a pope (Benedict XIV) with decades of legal experience dealing with real human beings gained within a Church drawing on centuries of pastoral experience dealing with real human beings. I would be loath to see that office abolished. Mandatory appeal (of affirmative results only, not negatives) seems a different matter. Such a requirement, though sharing a pedigree with the defender of the bond, seldom results in reversing affirmative decisions made in first instance and amounts therefore in a many-month delay in completing cases for no obvious reason. Besides, if one does not trust the officers of first instance to reach a sound result, why should one trust the officers of second? While they sit on different cases they are often the very same people. In any case, while one could eliminate DOBs and mandatory appeal without destroying the juridic nature of the annulment process, no one really thinks that those two institutes are the behind the annulment problem or thinks that members of the second group would be satisfied with two such ancillary reforms.

No, what the second group really wants, I think, is to eliminate the annulment process precisely as a juridic process. Their proposal comes in different guises: let the couple make the determination about whether they are married (you know, because divorced couples are so good at agreeing on things), or let their pastor decide for them, or their (presumably Catholic?) marriage counselor, and so on. Inescapably, though, such a proposal requires this: dropping the canonical presumption that when people wed they marry validly, so we don’t need a canonical process to determine whether that presumption withstands objective scrutiny; alternatively if more brazenly, dropping the idea that Jesus meant everything he said about marriage, divorce, fornication, and adultery (and, I might add, about sharing in his Body and Blood), so that the annulment issue disappears overnight.

But take, on the other hand, all of the Lord’s teachings seriously and grant that people who wed should be accorded the presumption that they are married, and—no matter what one finally calls it—a juridic process to test that presumption and, in turn, to respect those teachings, is going to be required. Personally, I think the process currently in place largely (not perfectly, but largely) does both.

A final note: one is going to hear all sorts of other matters being raised in discussions supposedly dealing with annulments and the annulment process: but be warned, if someone starts talking about, say, the sacramentality of marriage, or ex opere operato, or canonical form, or marriages entered without Faith—all of which are very important topics—know that the topic has shifted from annulments and the annulment process to one of marriage and marriage law. Related matters, I need hardly say, but quite distinct ones.