The Annulment Dilemma: Revisiting a complicated process

No clear guidance emerged from last fall’s Synod of Bishops on the Family for divorced and remarried Catholics who wish to receive holy Communion. Cardinal Sean O’Malley, O.F.M.Cap., among others, has suggested that streamlining the annulment process may be the best way to provide relief for couples whose second marriages are considered invalid by the Catholic Church because of a prior valid marriage that has not been annulled. While this may be appropriate in some cases, even a streamlined process will not address the real pastoral questions that the annulment process raises.

Over the course of 40 years as a priest, I have helped many couples pursue an annulment in order to be free to validate their current marriage in the eyes of the church. I usually begin by explaining in simple terms the reason why their current marriage is considered invalid by church standards. This is a very hard nut to swallow for two people who have pledged their love and fidelity to one another and who have been enjoying the fruits of their relationship for more than a few years. Though insulted by this judgment, many couples still decide to forge onward with faith and humility.

In explaining what an annulment is, I often hold up a pen with its point retracted. The assumption is that the pen contains a cartridge and is suitable for writing. If I take the cartridge out of the pen, it still looks the same as before. It is not until I try to write with the pen that I discover there is no ink. While the pen looks like any other writing instrument, it is not until I look inside and discover that something essential is missing that I understand why it will not write.

All marriages look alike from the outside. When a marriage ends in divorce, the annulment process tries to look inside the marriage to see what may have been missing from the very beginning. When an essential element is determined to have been absent, a declaration of nullity is made by the church (i.e., it declares that the marriage was invalid, that it was not, in fact, a marriage.) In so-called “shotgun” weddings, annulments are relatively easy because a pregnancy and a desire to do the “right thing” are seen as factors that limit the freedom of both parties.

While this may seem to be a simple case, the process for achieving a declaration of nullity is not simple at all. Initially it requires the petitioner, the person seeking the annulment, to write an autobiographical essay, beginning with childhood and continuing through adolescence, assessing his or her relationship with parents, the history of dating, sexual activity, courtship, proposal, marriage and significant events in the marriage. This is the first obstacle, and for many people, it is an insurmountable one. In my experience, only one in five petitioners makes it past this first step. For college-educated individuals who have written major reports or term papers, the idea of a 10- or 15-page essay is not intimidating at all. But for countless others who have never written more than a one page letter, this autobiographical essay is a mountain too high to climb. I have set aside upwards of 50 applications for annulments that never made it past this initial obstacle despite numerous encouraging conversations.

The annulment process also stalls at this juncture because it is simply very difficult and painful to relive the events and emotions of a marriage that has failed. For some, this process can become very cathartic and healing, but for many others the wounds of a failed marriage are too painful to touch. Try as they may, reliving the past through an autobiography that others are going to read is humiliating for many divorced people.

Pastoral Challenges

For those who are contemplating a second marriage, the challenges posed by the annulment process are equally daunting. It takes time for a divorced person to regain his or her self-confidence and composure once the divorce is final. When true love finally comes along and marriage is the next step, it is very disheartening to learn that it is impossible even to set a date for a church wedding until an annulment has been granted. Given the fact that weddings are often planned a year in advance and that the annulment process may take 18 months, two and a half years seems like an awfully long time to wait. Throw in the biological clock, and the wait becomes even worse.

The way the church understands annulments frequently causes special concern for divorced mothers and fathers. They assume that if a marriage is annulled, the children of that marriage must be illegitimate. Explanations that this is not true because they were civilly married at the time of the birth of their children fall on deaf ears because the church’s position is that a valid marriage never took place. For many couples in a second marriage, the idea of harming their children in any way is absolutely out of the question. The logic here is unassailable.

In contemplating the possibility of an annulment, one of the first questions raised by a potential petitioner has to do with the respondent, the other party in the failed marriage. The fact that this person will need to be contacted and invited to provide testimony is often a source of great anxiety. Divorces are never easy and never without pain. The thought of having to involve the other party can oftentimes be a bridge too far.

When Catholics have been divorced and are seeking an annulment, there is an implicit understanding that this is a Catholic thing. The explanation as to why an annulment is needed becomes much more complex when the marriage that needs to be annulled is a marriage between two non-Catholics that took place at city hall, on the beach or in a Protestant church. Because the two parties are not Catholic, they are not obliged to follow Catholic form (i.e., to be married in a church by a priest before two witnesses). Their marriage, therefore, is considered to be a valid marriage that will require a full-blown annulment (i.e., canonical trial) in order for the divorced Protestant or whatever to marry his or her new Catholic spouse in a Catholic church. This is very difficult for the non-Catholic partner to understand.

As a corollary, in the case of a second marriage where the non-Catholic partner has been married before, an annulment is needed before that person can be received into the full communion of the church through the Rite of Christian Initiation of Adults. Where the non-Catholic believes that his or her first marriage was a valid union now ended by divorce (and therefore not annullable by Catholic standards), it becomes impossible for this person to be welcomed into the Catholic community.

In contrast to these cases, should a Catholic be married by a justice of the peace on the beach or at city hall or even by a Protestant minister in a Protestant church, this marriage, should it end in divorce, can be easily annulled in a matter of weeks by the Catholic Church. This is called a documentary annulment or a defect of form annulment. In this case, all the Catholic divorced party needs to do is present a copy of his or her baptismal record and a copy of the divorce decree. For a small filing fee, the church will issue a decree of nullity based on the simple fact that the Catholic party was obliged to follow Catholic form when getting married and did not do so. Therefore, the church regards this marriage as being invalid for lack of form. It does not matter if this marriage had lasted a month or 40 years.

The irony of all this is very clear. Catholics who marry outside the church usually are not observant Catholics. They may have been baptized and never catechized. Or they may be individuals who have slipped away from the practice of their faith. For them, the annulment process in preparation for a second marriage in the church is very simple. But the practicing Catholic who gets married in the church because it is the right thing to do has to go through an 18-month ordeal before an annulment is granted and they are free to marry in the church once again. The lapsed Catholic has an easy time procuring an annulment, while the faithful Catholic has to endure the lengthy and arduous process of a canonical trial.

Witness Testimony

Another tricky part of the annulment process has to do with establishing the testimony of three or more witnesses. In the annulment process, a witness is a person who does not weigh in on the merits of the petitioner’s case but rather explains what they saw in the relationship and the marriage prior to the divorce. What is on trial in an annulment process, a canonical trial, is the bond of marriage. Did it or did it not take place at the time of the marriage? Witness testimony is needed to provide information that suggests something was lacking in the relationship before the marriage took place. Witnesses are not finding fault or placing blame for the marriage’s breakup. They are merely attesting to what they observed in the relationship that is being examined. Immaturity, a lack of good judgment or diminished freedom can emerge from this kind of testimony. The challenge, therefore, is to find people who have this kind of intimate knowledge about the marriage being studied and who understand the nature of what is being sought in their testimony.

There are also some very serious ecumenical questions about our understanding of marriage. Jesus’ statements in the Gospels of Matthew (9:3-8), Mark (10:2-9) and Luke (16:18) are the foundation of the Roman Catholic teaching on the indissolubility of marriage. And while the sacramentality of marriage is seen to be rooted here, it was not until the 12th century, at the Council of Verona, that our current understanding of the sacrament of matrimony began to develop. At the same time, over the centuries, most other Christian denominations have read the same Scripture passages and come to a very different place. Many Protestant groups do not regard marriage as a sacrament.

Certain steps can be taken to help improve the annulment process. In the Diocese of Springfield, Mass., for example, statements are taken orally rather than requiring a lengthy written report. Annulments could also be sped up if pastors were given a greater role in deciding cases at the parish level. Unfortunately, streamlining the process will do nothing for the Protestant, now married to a Catholic, who cannot in conscience apply for an annulment because he or she believes that his or her prior marriage was valid.

The fact of a divorce should be proof enough that something essential was missing in a marriage or that the marriage has died. To insist that a person who is happily married for 25 years to a second spouse is still, in fact, married to the first spouse flies in the face of both reason and experience. When we think of the complexities of the current annulment process, we really should be asking: Is this what Jesus intended? For many of us who pastor parishes and try to shepherd God’s people, the answer is a resounding no.