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Practical Questions and Answers
The following questions and answers address the legal procedures of the Church, and their application, which is based on Christ’s teaching that “what God has united, Man must not divide.” They allow separated spouses to have their grievances heard and to determine their marital status in good conscience before God and the Church.
1. How does the Catholic Church define marriage?
The Church teaches that marriage, within God’s plan, is an intimate partnership of life and love. The Church expects a man and a woman to commit themselves to each other for life. They are to be faithful to each other and open to children. Husbands and wives render mutual help and service to each other through an intimate union of their persons and of their lives. In short, marriage is a union of two persons, an interpersonal relationship which includes the sharing of the whole of their lives. This commitment of spouses presumes sufficient maturity, freedom, knowledge, and psychological capacity.
2. What is an annulment (decree of invalidity)?
The term “annulment” is a popular, but not totally accurate, word for what once was called a declaration of nullity, but is now called a Decree of Invalidity, which is an official declaration by the Tribunal that what appeared to be a marriage was, in fact, not a true marriage as the Church understands it. A decree of invalidity does not deny that a relationship existed nor does it imply that the relationship was entered into with ill will or moral fault. Rather, after a careful and thorough study, the Tribunal issues a decree of invalidity when it is proven that some ingredient necessary for a true marriage (e.g., proper intention, sufficient psychological maturity, capacity, freedom, and knowledge) was lacking when consent was exchanged.
3. Is there a difference between a civil divorce and an ecclesiastical decree of invalidity?
Yes. A civil divorce is a legal action whereby the division of property and custody of children having been settled, a civil dissolution is granted, and husband and wife are declared free by the same civil authority to enter a new marriage with a different partner. Such a civil procedure does not question the validity of the initial consent in that marriage. By contrast, in the canonical process, if the gathered factual evidence, examined in the light of canon law, shows that a particular marriage was not canonically valid; the Church's Tribunal declares it null and void. This is the ecclesiastical Decree of Invalidity (colloquially called an "annulment").
4. How does the Church view civil divorce?
If civil divorce is the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance, it can be tolerated and does not constitute a moral offense (see CCC #2383). However, from the Church's perspective, civil divorce does not provide freedom to remarry.
5. Who may apply for a decree of invalidity?
Anyone, baptized or unbaptized, Catholic or non-Catholic, may petition for a decree of invalidity.
6. Are Catholic marriages the only ones which need to be examined before a new union can take place in the Catholic Church?
An erroneous impression, very common among Catholics, is that the Church recognizes as valid only the marriages of Catholics. The reality is that the Catholic Church recognizes as valid not only the marriages celebrated in the Catholic Church between Catholics, but also those of baptized non-Catholics, as well as those of the non-baptized. Valid marriages between baptized people (Catholics or non-Catholics) are sacraments; those between non-baptized are not sacraments, but are "natural bonds" because they are contracted according to the natural law, rather than by the sacramental bond that comes through baptism. Therefore, if a Catholic wishes to marry a divorced, baptized non-Catholic, or a divorced, non-baptized person, a decree of invalidity would have to be issued by a Catholic Tribunal before any new union can take place in the Church.
7. Is a decree of invalidity automatically given in every case?
No. Just as every relationship is unique, so each application is judged individually on its own merits by using the same canonical procedure. Sometimes the evidence presented makes clear that the marital relationship eventually broke down due to a variety of factors but there is no reason to question the validity of the original consent or the capabilities of the spouses.
8. How does canon law view the children born of a marriage which is later declared to be null?
A decree of invalidity does not affect in any manner the legitimacy of children, names, property, maintenance payments, inheritance rights, or other matters dealt with in the civil courts. As a matter of fact, the law of the Church expressly states that "children conceived or born of a valid or putative (i.e., at first considered valid and later annulled) marriage are legitimate." (Canon 1137)
9. How do I begin my case?
Your local parish staff will assist you with the preliminary paperwork required in starting a case. You will have to prepare a written marital history of no more than two pages. You will need to provide a copy of your state marriage license certificate, baptismal certificate, and your state divorce decree stating you are now declared separated and single (must include the judge's signature and date of final separation).
10. What is the process?
The following is a brief outline of how a case proceeds:
The first step is for the petitioner to contact the parish where s/he lives. An interview is conducted by the parish advocate (priest, deacon, or lay minister) who explains the process, answers questions, and assists in the preparation of the initial documents. A current copy of your baptismal certificate with notations (if Catholic), marriage license certificate from the state and sacramental certificate of marriage, final decree of divorce and a short summary of the pre-marital and marital relationship are needed. These documents, along with a non-refundable deposit of $150, are sent to the Tribunal to begin the process. Paperwork is submitted by the parish advocate only.
The location of the marriage and the residence of the respondent determine which diocesan Tribunal will have jurisdiction. Usually the Tribunal of the residence of the petitioner (person seeking the decree of invalidity) accepts the case with the consent of the Tribunal where the former spouse lives. It is required that the petitioner’s civil divorce be final before the Tribunal can accept the petition.
The Tribunal sends a questionnaire to the petitioner and asks that s/he give a full account of the marriage considered to be invalid. At some point, the petitioner may be asked to go to the Tribunal for a personal interview.
The former spouse (respondent) must be contacted by the Tribunal, informed of his/her rights and, if willing to participate in the process, is sent a questionnaire. If the respondent chooses not to participate, the progress of the case is sometimes more difficult but not necessarily impeded.
The petitioner is asked to name witnesses, i.e., people who knew the parties well during the courtship and marriage and are willing to offer objective and insightful information. The respondent, if s/he cooperates, is also asked to name witnesses.
The petitioner and respondent may each appoint an advocate to assist with their case.
The Defender of the Bond (a member of the Tribunal staff designated to protect the marriage bond) evaluates the case and presents all significant reasons that would argue in favor of a valid marriage and against a Declaration of Invalidity.
A Judge carefully studies the case, often consulting with psychological and pastoral experts. If the Judge reaches moral certitude that invalidity has been established, then the Judge issues a Decree of Invalidity.
Both parties have a right to appeal the decision rendered by the Judge. Even if there is no appeal, all Decrees of Invalidity receive a mandatory review by the Court of Second Instance at the Metropolitan Tribunal of San Francisco.
11. What is the financial cost for the canonical process?
Funding for our Tribunal comes from the general diocesan coffers. However, it is deemed to be fair and right that those persons benefiting directly from this service should be asked to make a contribution toward the defrayment of the necessary expenditures. Although the actual costs are much higher, the fee for processing a case is $600 which includes the $150 non-refundable deposit required at the start of the case. The balance ($450) will be billed during the process, beginning when the case is accepted. Payments can be tailored to fit even a meager budget. It is important to know that financial means in no way affects the progress of a person’s case or eventual decision.
12. What are the parties’ rights?
The petitioner has the right to request that his/her former marriage be studied by a Tribunal that has jurisdiction. The respondent has the right to know that this petition has been submitted. Both parties have the right to give a statement about the marriage, to read each other’s statement, to have an advocate, to name witnesses, to read the judge’s decision and to appeal the decision if s/he believes procedural rights have been denied or that the decision was in error.
13. Is the procedure emotionally draining?
Sometimes digging up the past and recalling painful experiences can be difficult. However, there is much to be gained by facing the reality of a failed relationship and admitting appropriate responsibility for it. The process affords the opportunity for increased insight into self, clarity about relational issues, and necessary healing and closure. It also affords a deepening of one’s relationship with the Church and with God.
14. How long does the whole process take?
Each case is unique and processing time varies for each case. Such factors as the strength of the grounds, the involvement and insight of the petitioner and respondent, the cooperation of witnesses and the quality of their testimony, and the requirement for a review of every case by the Court of Second Instance have a significant effect on the length of time each case takes. Generally at the present time, it takes between 12 and 18 months to complete.
15. What about confidentiality?
Inspection of the acts only takes place by prior appointment at the Tribunal office during those times provided by Church law. Parties are notified of their opportunity during the course of the investigation. Documents or copies or notes may not be removed from the Tribunal.
16. Is one free to remarry in the Church after receiving a Decree of Invalidity?
If a marriage is declared invalid and the decision confirmed by the Court of Second Instance and there are no restrictions concerning remarriage, the usual procedure of preparing for marriage in the Catholic Church may be started by contacting the local parish. The respondent derives the same benefits as the petitioner from a Decree of Invalidity and is free to re-marry in the Church once a affirmative decision has been rendered. If a marriage is declared invalid for causes that may still exist, a second marriage obviously cannot be permitted until it has been demonstrated that the cause which invalidated the first marriage has been removed. Therefore, a professional evaluation and counseling may be required in such situations, along with pastoral counseling. Again, such a restriction can be placed on one or both parties.
17. What if a Decree of Invalidity is not issued?
A petition for invalidity can be rejected by the Tribunal when there are no apparent grounds or legal basis according to Church Law, or when the grounds for invalidity cannot be substantiated because of inadequate witness testimony or documents. A rejected petition for nullity may be reintroduced at some future time, when additional information and testimony becomes available.
18. Divorce with no new marriage in the Church. What do I do?
Divorce itself does not prohibit a Catholic from receiving the sacraments or limit his/her involvement in the Church and sacramental life. It is the remarriage without the Declaration of Invalidity which may cause a person not to be able to receive the Eucharist. If a marriage case has been processed by the Church’s Tribunal and Decree of Invalidity could not be given, the parties are encouraged to consult their pastor or pastoral minister for appropriate direction and guidance on how best to continue living their Catholic faith and participating in the Church.
19. Are there different processes to obtain a Decree of Invalidity?
Yes, there are three categories to obtain a decree of invalidity:
- Judicial – Formal case or Ligamen
- Dissolution – Pauline Privilege or Favor of the Faith cases
- Administrative – Lack of Form case
20. What is a Ligamen process?
Ligamen in Latin means “prior bond." This situation exists when the respondent in a case that is presented to the Tribunal for investigation has a previous marriage and that marriage was not annulled by the Catholic Church. A Ligamen process presumes that the respondent’s previous marriage was valid, and therefore he/she was not free to enter into another marriage.
21. What is a Pauline Privilege case?
A Pauline Privilege is done when two unbaptized persons marry and one spouse departs the relationship and the other wishes to become baptized and then marry in the Church. The privilege is granted when it can be proven that both parties were not baptized at the time of their marriage. This is done by two witnesses from each side of the marriage testifying to non-baptism, along with the petitioner and respondent. After it is proven, the person wishing to be baptized receives baptism and then at the time of a new marital consent, the Pauline Privilege is invoked.
22. What is a Favor of the Faith case?
Like the Pauline Privilege, the Favor of the Faith case is concerned with non-baptism. According to this privilege, a marriage entered by parties, of whom at least one is not baptized, can be dissolved by the Roman Pontiff in favor of the faith, as long as the marriage itself had not been consummated after both spouses received baptism.
23. What is a Lack of Form case?
A Lack of Form process for a Decree of Invalidity is a process granted only when one of the parties is a baptized Catholic who attempted marriage OUTSIDE of the FORM required by the Catholic Church (i.e., before a priest or deacon, in the presence of two witness within the a Catholic Church). This kind of process is proven by documents alone. It is essential that the following documents be submitted as follows: "Lack of Form" form; the Catholic party’s baptismal certificate, newly issued within the last 6 months; a legible copy of the state marriage license certificate; and a legible copy of the divorce decree judgment page noting the date of final separation and a judge’s signature or stamp.
"How can we not think of the Good Shepherd who bends over the lost, wounded sheep, when we wish to describe for ourselves the judge who, in the Church’s name, deals with and judges the status of one of the faithful who turns to him in trust?” John Paul II, January 17, 1998