“Do I Need an Annulment?” and other common questions about divorce and remarriage

(Updated) On my radio show, I’m sometimes asked by callers questions pertaining to their marital status.

The twin issues of divorce and remarriage are extremely common today, and many people, including many Catholics, find themselves confused and unsure about what God and the Church require from them in this area.

This uncertainty has various causes, such as failure to seek answers from the competent authorities in the Church (e.g., canon lawyers) out of a lack of realization that they should do so (i.e., the result of poor catechesis), or because they were given erroneous information by well-meaning but ignorant fellow Catholics, or even because they are simply afraid of discovering what the Church’s answer to their situation might be and prefer instead to live in an “ignorance is bliss” cloud of unknowing. There are other reasons why many divorced Catholics don’t really understand what the Church requires, but the three just mentioned seem to me to be among the more common ones.

To help clarify these issues, I asked canon lawyer Jacqueline Rapp, JD, JCL, to write an article for Envoy Magazine that would cut through the ambiguity and confusion and answer the more common questions Catholics have about divorce and remarriage. The article, “Do I Need an Annulment?” appeared several years ago in Envoy‘s 6.2 issue, and I post it here as a service to all who may be wondering about that very issue, whether for themselves or for someone they care about.

As a Judge and a Defender of the Bond within our respective dioceses’ Catholic marriage Tribunal, we encounter misunderstandings every day about the declaration of nullity (or annulment) process. Often, the people who come into our offices question the need for an annulment before approaching a new marriage. Their misunderstandings commonly arise from misconception as to what the Catholic Church teaches about marriage, and consequently, why the Catholic Church judges some relationships not to be marriages.

What is a Christian marriage according to the Catholic Church?

In the law of the Church, many ingredients make up a Christian marriage. First, marriage is a covenant. The New Catholic Encyclopedia provides the following insight about the word covenant: “The theology of the covenant in the Bible is consistently a theology of divine promise. Whether in a profane or a sacred sense, the sacred authors utilize the berit [Hebrew for “covenant”] to trace the line of salvation history toward its divinely willed goal.” In short, the idea of covenant in the Bible is one of a strong pact between humans or between God and humans, in which each promises to assist the other towards a common goal.

In marriage, the covenant is between a man and a woman. The spouses establish this covenant through their marital consent, by which they intend to establish between themselves a partnership for the whole of life. This means each spouse will assist and support the other in all areas of their common life, the best he or she is able, so long as the other spouse is alive.

Marriage is permanent and exclusive (monogamous). The goal of this covenant, by its nature, is the mutual welfare of the spouses (physically, emotionally, and spiritually) as well as openness to the procreation, welfare, and education of children. The Church commonly refers to the good of the spouses and the good of children as the two elements of marriage. All genuine marriages, whether Christian or non-Christian, must contain these elements. Such a partnership is commonly referred to as a “natural marriage.”

We base this understanding of natural marriage on the text of Genesis 2:18-25, which teaches that God’s will has established all marriage. True marriage is heterosexual (between a man and a woman); it is monogamous (one man and one woman); it is exclusive (the two form a new and unique relationship; the two become one); and it is permanent (if the two become one, this new union cannot be divided; a conclusion Christ confirms in Matthew 19:3-12).

The purposes of marriage are also taught in Genesis. First, we read there how God told Adam and Eve to “be fruitful and multiply” (Gen 1:27-28). Thus marriage is about “fruitfulness,” or bringing children into the world and raising them to maturity (procreation and education).

In addition, we read in Genesis 2:18-25 that God created all the animals and brought them before Adam to be named. But a “suitable partner” was not found for him among them. So God created the woman, and Adam responded: “This at last is bone of my bones and flesh of my flesh” (v. 23).

This passage confirms what the Church teaches about marriage: that it involves the partners being suitable for each other through the sharing of strengths and weaknesses. When Adam says, “bone of my bone,” he is saying “this one is strong where I am strong.” And when he says, “flesh of my flesh,” he is saying, “this one is weak where I am weak.”

Thus canon law defines natural marriage this way: “The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its very nature ordered toward the good of the spouses and the procreation and education of children” (Canon 1055, § 1).

When both the husband and the wife are baptized Christians, this natural marriage takes on the element of sacramentality. A marriage between baptized persons is a sacrament, a visible sign of God’s love in the world. This means that the couple finds in their relationship a source of God’s grace, and through their partnership they assist one another in coming closer to God.

By the very fact that both the husband and the wife are baptized, their marriage becomes a sacrament. It is not a matter of where the wedding takes place or who officiates at the ceremony. Whether marriage is a sacrament is completely based upon the baptismal status of the parties.

When does a marriage come into being?

Marriage comes into being through lawfully manifested consent – that is, there must be a taking of the other as spouse in a way recognizable to the community. When two people give themselves to one another in order to create a partnership of life and love (marriage), and they do so in a manner recognized by the community, they marry. For two unbaptized people, this can be in front of a justice of the peace in the middle of a field. For a baptized Christian, this can be wherever their faith community recognizes the marriage.

For Catholics, as a faith community, when at least one of the parties is Catholic, the Church requires the parties to express their desire to give themselves in marriage before a priest, deacon, or designated minister, with two witnesses. We call this the canonical form of marriage. If a Catholic desires to enter marriage with a non-Catholic, a dispensation (relaxation of the law) may be granted, allowing the parties to exchange their consent in another manner. Nevertheless, this kind of dispensation is the exception.

What is an “annulment”?

A Catholic annulment, also known as a declaration of nullity or invalidity, is a statement of fact by the Catholic Church. After carefully examining the couple’s broken relationship, the Church states that a valid marriage, as the Church defines marriage, never existed. It is not “Catholic divorce,” as some have called it, since divorce looks at the moment the relationship broke down and says, “A marriage existed, and now we are ending it.” The annulment process says, on the other hand, “From the very beginning, something was lacking that was necessary for this relationship to be called a marriage.”

Quite often, what is lacking at the time of the civil contract is one of the essential elements or properties of marriage we have noted. The mature consent of the spouses in undertaking the marriage covenant may also be lacking.
Of course, the Church recognizes the couple’s initial love for one another. It also realizes that this love led to some form of relationship. In addition, the Church acknowledges that there was a valid civil contract and recognizes that the spouses were lawfully married in the eyes of the state. Therefore, all children born of this valid civil contract are legitimate, according to the Catholic Church. In keeping with canon 1137, they are known as the legitimate children of a “putative marriage.”

All these civil and legal realities the Church recognizes. But the annulment process looks at an entirely different realm – the spiritual – which falls within the Catholic Church’s domain of competence to judge.

Why is an annulment necessary?

The Church teaches that marriage is permanent. If a sacramental marriage is created, no human power can separate what God has joined together (see Mt 19:6). According to the Church, not even a civil government with the power to end the civil contract (which the state calls “marriage”) can terminate a sacramental marriage.
For this reason, once two people stand in front of God and contract a marriage, if they enter into a marriage covenant as defined by the Catholic Church, this covenant cannot be dissolved so long as both parties remain alive. The marriage bond is in place until death. As a result, no new marriage covenant can be created with someone else.

Any person who has entered a genuine marriage remains bound to that spouse. The spiritual bonds of marriage, if formed, cannot be ended by civil divorce. In the eyes of the Church, divorce ends the various civil, financial, and legal bonds previously contracted between spouses, but not the spiritual bonds.
For this reason, the Catholic Church investigates, through the annulment process, whether an actual marriage, as defined by the Church, came into being. In carrying out this investigation, the Church examines various facts presented to the marriage tribunal by those seeking the annulment and their witnesses. If the Church then determines that no genuine marriage came into being, these individuals are free to marry someone else if that person is also free to marry.

Why do I need an annulment if I’m not Catholic?

If you’re not Catholic, but plan to marry a Catholic, you might be asked to go through the annulment process. This seems odd to most non-Catholics because neither person from the first union is Catholic. Therefore, why should the Catholic Church investigate this marriage?

The Catholic Church presumes the validity of any marriage between two people who are free to marry at the time of their wedding. (They must have no previous marriages.) Basically, if the non-Catholic religious community of either spouse recognized the marriage, so does the Catholic Church. Since marriage, as God created it, is permanent, then the Catholic Church must also investigate these marriages. Because the non-Catholic wishes to marry a Catholic, the Church’s law applies to the proposed marriage, since canon law still binds the Catholic whom the non-Catholic wishes to marry.

In short, the Catholic Church believes her teachings concerning the essence and the properties of marriage bind all people, regardless of whether they are Catholic, as part of God’s natural law.

Are there options for working with previous marriages other than the annulment process?

Yes. For a person who was either Catholic or married to a Catholic, and did not marry according to the canonical form of marriage (in front of a Catholic priest or deacon with two witnesses), and if the Catholic Church’s permission was not obtained for this marriage (called a “dispensation from canonical form”), then the Church could process this case as a “Lack of Form.” The Church calls this an administrative process.

In this case, the individual must prove that one of the former spouses was Catholic, that the couple attempted marriage outside of the Catholic form without first obtaining the proper dispensation, and that the marriage is now irreparable. The individual must also establish that this marriage was never subsequently convalidated (commonly, and mistakenly, referred to as “blessed” by the Church.) Most marriage tribunals accept as sufficient proof of these circumstances the Catholic’s baptismal record, a copy of the marriage license, and the couple’s divorce decree. Nevertheless, depending upon particular circumstances, more evidence may be necessary.

If one of the spouses was not baptized during the first marriage, and the lack of baptism can be proven (provided the person applying for this process did not cause the marital breakdown), then a “Privilege of the Faith” case (or “Petrine Privilege” case) can be sent to the Holy See. If the Holy See approves, the non-sacramental marriage may then be dissolved in favor of a new marriage.

If neither of the spouses was baptized during their marriage, and now one of the spouses wishes to become baptized and marry a Catholic, provided one can prove the non-baptism of each former spouse, a Pauline Privilege is possible. In this situation, the diocesan bishop or his lawful representative, having established the non-baptized status of both parties, allows the non-sacramental partnership to be dissolved in favor of the new marriage. Of course, the spouse desiring baptism and the new marriage must first receive baptism.

A Basic Rule

If you are trying to determine whether you need an annulment, these explanations may be helpful. In any case, keep in mind one basic rule as you approach the process: If either you or your intended attempted a previous marriage, be sure to tell your priest. Before you attempt another marriage, the Church must address the previous marriage in some form or another, either by a documentary case, a privilege case, or a formal annulment process.

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