What to know before asserting that a typical annulment ‘makes no sense’
Misunderstanding—sometimes seasoned with plain ignorance—about canon law, annulments, and tribunal work is common among Catholics and pervasive among non-Catholics. What is unnerving to see, however, in the wake of Cdl. Kasper’s call for holy Communion to be administered to those living in “public and permanent adultery” (CCC 2384), is how high up in Church life such problems apparently reach.
In his latest remarks on annulments, Kasper says: “There are situations in which annulments are possible. But take the case of a couple with ten years of marriage, with kids, which in the first years [was] a happy marriage, but for different reasons fails. This marriage was a reality and to say that it was canonically null makes no sense.”
Taking the cardinal’s words at face value, he flatly rejects (for it “makes no sense”) declaring null any putative (a term Kasper does not use, but which I will discuss below) marriage if it seemed happy for a time, produced children, and lasted ten years. Let’s look at these factors.
Though some these days are put off when canon law is quoted in correction of canonical errors, nevertheless, a legal principle from the thirteenth century is important here: Non firmatur tractu temporis quod de iure ab initio non subsistit, or, “What is null at the start does not become valid with the passage of time.” Regula Iuris XVIII (1298).
The passage of one day, one year, ten years or thirty since the wedding does not make a null marriage valid, and one need only glance at, say, Canons 1156-1160 to see this principle being honored in modern marriage law. Indeed, the Roman Rota often rules for nullity regarding putative marriages that lasted far in excess of ten years. Does Kasper think those Rota decisions “make no sense”? Furthermore—though it never occurred to anyone that a couple’s having children is proof that they are married and so no pithy phrase is available to refute the claim—the Roman Rota often finds null putative marriages that produced many children. Does Kasper think those decisions “make no sense”?
That leaves, then, only Kasper’s objection to annulments for couples whose marriages seemed “happy” for a few years. At this point, Kasper’s unawareness, or avoidance, of the notion of “putative marriage” prejudices his formulation of the problem.
Long story made short, a putative marriage is a union that, once entered into in good faith (by at least one party), looked like a real marriage (1983 CIC 1061 § 3). Used this way, the term “putative marriage” describes the vast majority of “marriages” that are later proven to have been null and helps one avoid mis-thinking that declaring a “marriage” null does something to a marriage as opposed to finding out something about a union. It’s a fine point, to be sure, but failing to advert to it, as Kasper consistently fails to avert to it, prejudices the formulation of this debate.
Notice, every time Kasper describes the union above, he calls it a “marriage”. Thus Kasper’s audience is set up to react negatively when, per the prelate’s description, a marriage that was happy, a marriage that produced children, a marriage that last ten years, is found null, for indeed, as Kasper’s audience rightly senses, a “marriage” can never be found null! What he does not alert them to, though, is the possibility that a putative marriage could be found null.
I realize, of course, that using technical vocabulary can be practically and pastorally cumbersome. In horse-shoes and in daily life, “close-enough” is usually good enough. Nevertheless, in contested matters of major significance, those who seek to influence public understanding of issues and public policy in regard to those issues need at least occasionally to acknowledge that some things are more complex than their phrasing seems to admit.