Dispelling Misconceptions

by Rev. Michael Foster

There are many misconceptions surrounding declarations of nullity. You may have heard some of them. The process takes years to complete; it costs thousands of dollars; it only matters who you are, or, who you know! Misconceptions need to be confronted. So let me address some of the more prevalent ones and refute them.

Are "annulments" simply "Catholic divorce?"

No. A civil divorce is a dissolution of a civilly valid marriage contract. No human power can dissolve a valid, consummated sacramental marriage. This statement is rooted in the Church's scriptural, theological and canonical traditions. A declaration of nullity is not a dissolution of marriage. It is not a "Church divorce."

Rather, it is a judicial pronouncement that a valid marriage had not been brought about on the wedding day as the community of the faithful had presumed. The law states that marriage is brought about through (1) the consent of the parties (the bride and groom), (2) legitimately manifested, and (3) by those qualified according to the law (again, the bride and groom).

If a tribunal investigation determines that (1) the consent was defective, then marriage was NOT brought about; (2) the consent was NOT legitimately manifested, then marriage was NOT brought about; and (3) one or both of the persons was unqualified according to law, then the marriage was NOT brought about.

In each situation there is a judicial determination that a valid marriage did not come into existence on the wedding day as everyone had been presumed. There is no dissolution of a marriage bond.

Does an "annulment" wipe the marriage away?

No. The word annulment is not used in the universal law of the Church. It is not utilized because it is inappropriate. The word annulment implies that you are taking "something" and wiping it away. This is not what is being done when a declaration is granted.

The more apt term is declaration of nullity. The Church is really declaring, in hindsight, that on the day of the wedding these specific factors (defective consent, problems regarding its legitimate manifestation, or the ineligibility of the bride or groom) prevented the two ministers from bringing about a valid sacrament - as had been presumed. The ceremony is not wiped away - all the guests saw it happen. The relationship of husband and wife is not wiped away - that remains the supposed relationship between the man and the woman. The children are not wiped away - they remain legitimate.

Rather, once a wedding has taken place, the legal presumption is that a valid marriage has been brought about. This presumption of validity stands in law, until contrary facts prove otherwise. The declaration of nullity affirms the contrary to be true. The burden of proof rests on the person who has initiated the petition before the tribunal. The tribunal can only declare whether or not it has been proven that the marriage was invalid from the start. The tribunal has no power to make the marriage null or void.

May a divorced Catholic, who has not remarried, receive Holy Communion?

Yes. A belief to the contrary is usually rooted in two misconceptions: first, that a divorced person is excommunicated and so cannot receive Holy Communion; second, that divorce negatively affects one's status in the Church and so without a declaration of nullity one cannot receive Holy Communion. Both misconceptions are false.

Unfortunately, many Catholics think that if they have divorced, even though they have not remarried outside of the Church, they are excommunicated and thus excluded from the reception of Holy Communion. This misunderstanding is derived from a Church council held in 1884 which imposed a penalty of excommunication on any Catholic in the United States who divorced and then remarried (note: this penalty has ceased to exist in Church law). The distinction between being divorced, and divorced and remarried outside the Church was lost in most people's minds. Divorce became synonymous with excommunication, when in fact, no one incurred the penalty of excommunication for a divorce.

The law is clear, the divorced Catholic is not excommunicated, and so he or she is free to receive Holy Communion.

In addition, some individuals think they need a declaration of nullity after a divorce in order to receive Holy Communion. This is not the case either. Divorce only impacts upon one's status in civil law; it has no impact upon one's status in Church law. The State dissolves the civil contract of marriage with divorce, thus rendering the parties' civil law status as single, not married. However, the Church holds that a marriage is a valid union until proven otherwise in a Church court. A divorced couple remains married to one another in the Church, though they are obviously living apart from one another after a civil divorce. Their status in Church law remains married.

Since the divorce does not impact upon one's status in the Church law, a divorced person is free to approach the Eucharist. In fact, anyone who is divorced should be encouraged to find strength through the reception of Holy Communion. Such a person has endured a traumatic experience through the painful separation from their spouse.

So as long as a divorced person has not remarried outside of the Church, and he or she is not conscious of any moral sin, that person can and should go to Holy Communion.

Is it true that marriage of long standing, with children, can be declared null?

Yes. The Church affords any divorced person the right to petition for a declaration of nullity. The length of the marriage or presence of children does not prevent the acceptance of a petition.

However, with that said, the longer the duration of marriage, the more difficult it is to overturn the presumption. Every case requires witness testimony. The presumption of validity cannot normally be overturned on the testimony of one party. There must be corroborative proof.

So, common sense indicates that the further you move away from the wedding day, the more difficult it is to overturn the presumption of validity. Witnesses have died or are unable to be located, or, they may no longer remember the circumstances because consent was exchanged so long ago. Hence, it is more difficult for a petitioner to prove nullity if the marriage had been long-standing in duration.

Nonetheless, as the Church affords individuals the right to petition, individuals should exercise this right.

With the continued commitment of bishops, canon lawyers and dedicated personnel who staff them, tribunals in the United States will continue to administer the Church's justice. The legal work of these individuals ultimately fulfills the supreme law of the Church: the salvation of souls.

From Annulment, The Wedding That Was by Rev. Michael Smith Foster
Available from Paulist Press, 997 Macarthur Blvd., Mahwah, New Jersey 07430

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