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Posted Tuesday, Feb. 8, 2005 at 7:30 a.m. CST

New annulment norms lack hoped for reforms

By John L. Allen, Jr.

A new Vatican instruction on annulment is not expected to change existing practice in the United States dramatically, but it falls short of reforms that many American bishops and canonists hoped for which would have made an annulment faster and easier to obtain.

Those reforms were contained in a second draft of the document, which seemed on the brink of publication in 2003. After debates within the Vatican, however, the draft was sent back for revision, and in the end several significant provisions sought by Americans were eliminated or watered down.

The instruction, titled Dignitas Connubii, was issued Feb. 8 in a Vatican news conference. The Latin-and-English version runs to 226 pages, and is organized into 308 articles.

The document is the result of almost 10 years of work, and the version published Tuesday represents the third draft. Experts from five offices of the Roman Curia were involved: the Roman Rota and the Apostolic Signatura, the two chief Vatican courts that handle marriage cases; the Pontifical Council for the Interpretation of Legislative Texts, charged with interpreting church law; and the Congregation for the Doctrine of the Faith and the Congregation for Divine Worship and the Discipline of the Sacraments.

Annulment Step-by-Step
  1. One party presents a petition to the tribunal in the diocese in which he or she lives, or in which the marriage took place.
  2. The tribunal screens the petition to determine if grounds for an annulment seem to be present, and if the evidence seems sufficient (some 20 percent of petitions never go forward for lack of grounds or evidence).
  3. If accepted, a case normally goes before a panel of three judges, though in some instances one judge may decide. It's not trial by jury, but more like a review board sorting through testimony to reach a conclusion.
  4. Both the party seeking the annulment and the other party to the marriage have a right to present testimony and other evidence. The diocese also has a canon layer called the "defender of the bond," whose job it is to defend the validity of the marriage.
  5. In the case of a favorable decision, there's an automatic appeal to an appeals court in another diocese. Both decisions must be favorable, and based on the same grounds, for the annulment to be granted.
  6. If the two courts are split, the case goes to the Rota in Rome.

If all six steps are observed, an annulment case can sometimes take years before final resolution, though often it happens more quickly.

Typical grounds for an annulment include lack of due discretion, fraud, and psychic incapacity.

There are also simpler cases that generally do not require trial, such as "prior bond," where one of the partners had a previous marriage, or "defect of form," where Catholics were not married in the church. If one spouse was not baptized, then the other party can apply for a "Privilege of the Faith" case (or "Petrine Privilege") from the Holy See. If neither of the spouses was baptized, and now one of the spouses wishes to become baptized and marry a Catholic, a Pauline Privilege is possible.

The cost of an annulment ranges from $500 to $1,000, depending on the diocese, although these costs are generally waved if someone can't pay. Each year tribunals in the United States run deficits.

-- John L. Allen Jr.
The purpose of the document is to provide a step-by-step guide for judges to use in processing requests for annulment, applying the principles of the new Code of Canon Law adopted in 1983, in light of the experience of the intervening 23 years. It plays a similar role to a 1936 document, Provida Mater, which did the same thing for the 1917 code.

"It's like a recipe book," one Roman canonist said. "If a judge follows all the steps outlined in the document, he can't make a mistake."

Unlike civil divorce, which simply acknowledges the failure of a marriage, annulment is a declaration that a sacramental marriage never existed, usually because one of the parties lacked the capacity to consent or due to impotence.

Though roughly 50,000 cases for annulment are processed annually all over the world, almost 70 percent, some 33,000, come from the United States. That's a remarkable change from just 35 years ago; in 1968, only 338 annulments were granted in the United States. Some Vatican officials have long felt that American church courts are too hasty in granting favorable responses, though Americans argue that the United States is one of the few countries that invested seriously in tribunals and canon lawyers, and that the number of annulments is a tiny fraction of the estimated 8 million divorced Catholics in the country.

Some had feared that the Vatican might use this new instruction to crack down on American practice, but in the end most of the points are technical matters of procedure that are not expected to alter the outcome of most requests. In fact, in at least one instance, the instruction should make life easier for Catholics seeking an annulment.

That instance concerns a canonical principle known as "conformity."

Existing law requires an automatic appeal of a ruling in favor of an annulment, and the two findings must exhibit "conformity," meaning they have to be based on the same point of law. If one court finds in favor of annulment on the grounds that the wife was insane, for example, and another that the husband was impotent, that doesn't satisfy the requirement. In such a case, review by a third court would be required.

Article 291 of Dignitas Connubii, however, introduces the concept of "substantial conformity," which would allow an annulment even if the two decisions were based on different points of law, as along as they are rooted "in the same facts and the same proofs." For example, if one court finds the wife was forced into marriage out of fear, and another that she lied when she gave consent in order to avoid some danger, this would technically be two different grounds for annulment, but they could be seen as in "substantial conformity."

In general, experts told NCR that the instruction gives more power to judges to limit procedural appeals that have the effect of unnecessarily slowing down the process. One canonist said this provision is intended in part to streamline cases such as that of Sheila Rausch Kennedy, who pursued a lengthy appeal of an annulment granted after a 1993 request from her husband, Joseph Kennedy.

Yet Dignitas Connubii falls well short of what many American bishops and canonists had wanted. The second draft of the document, circulated for comment in 2002, contained only 47 articles, and among them were at least two changes that theoretically would have made the process faster and easier.

First, article 35 of the 2002 draft would have allowed declarations of even one party, meaning the husband or wife, to constitute full proof of the nullity of the marriage. Under existing law, those declarations usually have to be supported by other proof, such as testimony from third-party witnesses. Many observers believe this reform would have been helpful especially in cases where the marriage dates back many years, and other proofs are hard to find.

In Dignitas Connubii, however, this provision is removed. One Roman canonist told NCR the logic was, "A marriage case is supposed to be about ascertaining the truth, and we all know that that the interested parties often have strong motives to lie."

Second, article 43 of the 2002 draft would also have dispensed with the requirement of a second finding in favor of annulment, most notably if the two parties and the church's own canonist were all in agreement. Dignitas Connubii, on the other hand, confirms the necessity of a favorable finding from a second court.

One expert who worked on Dignitas Connubii told NCR that the aim of the document was to avoid pointless delays and objections, but at the same time to ensure that the outcome is not automatic, and that a serious judicial process is observed.

One example of how Dignitas Connubii tries to avoid a rubber-stamp approach, experts say, comes in article 209, which attempts to limit the tendency of parties to cite minor psychological disturbances that many people experience, such as stress, as grounds for incapacity.

Inside the Roman Curia, the evolution from the 2002 draft to Dignitas Connubii is seen as something of a defeat for Italian Cardinal Mario Pompedda, the head of the Apostolic Signatura, who spoke in favor of the earlier draft. Its revision in 2003 was instead entrusted to a group headed by Spanish Cardinal Julian Herranz, head of the Pontifical Council for the Interpretation of Legislative Texts. Herranz is one of two Opus Dei cardinals.

At the Tuesday press conference, Herranz defended the church's right to subject failed marriages to a judicial examination before granting an annulment.

"Not to take an interest in this problem would be equivalent to obscuring in practice the sacramentality of matrimony," Herranz said. "That would be even less understandable in the present circumstances of confusion about the natural identity of marriage and the family in certain civil legislation, which not only welcomes and facilitates divorce, but in some cases puts in doubt heterosexuality as an essential aspect of matrimony."

John L. Allen Jr. is NCR Vatican correspondent. His e-mail address is jallen@natcath.org


National Catholic Reporter, February 2, 2005

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