Matt C. Abbott
Divorce, annulments, and the Catholic Church
By Matt C. Abbott
The following are excerpts from the book Annulments and the Catholic Church: Straight Answers to Tough Questions, authored by canon and civil lawyer Edward Peters. The book is written mostly in question-and-answer format, with 100 questions on the topic of Church annulments being answered by Dr. Peters. Thanks to Matthew Pinto and Mike Flickinger of Ascension Press for allowing me to reprint this material.
Introduction
Each year more than a hundred thousand people, including thousands of non-Catholics, are directly involved in the Church's annulment process. Several times that number — family members and friends — are affected by the decisions reached in annulment cases. All of these people, to say nothing of observers from the Catholic and the non-Catholic world, have questions about annulments. Most of the questions contained in these pages derive from those posed to me as a canon lawyer, tribunal official, and teacher over the years. Indeed, I have found that people's questions touch on almost every significant aspect of the annulment process, and so it was not difficult to cover most of the key issues in a question-and-answer format. I have tried to answer these questions as I would address someone sitting in my office — that is, simply and accurately. There are, though, two advantages to answering annulment questions in writing: First, I can add a few extra details to written answers, usually concerning things that people are likely to pose as follow-ups to their original question; second, I can give references to the canon numbers upon which my answers are based. Obviously, I think the answers in this book are correct, but if one wishes to disagree with them, at least it will be clear why I said what I said. Speaking of being clear, I have avoided technical terms as much as possible in these pages, but this is a technical field and precision comes with technical terminology. Major terms are defined in the Glossary.
This book can be read front-to-back, since the questions generally proceed in the same order in which they arise during a typical annulment case. The Index, on the other hand, allows for consultation on a topical basis, since there is no need to explain earlier issues if only the later ones are causing confusion.
A word of caution: Do not take this book and try to analyze your own marriage, or your parents' marriage, or your children's marriages, or your friends' marriages (see Question 100). Do not take it to a pastor or tribunal judge and say, "See? It says right here this annulment must be granted (or denied)." Because this book does not say that.
Every annulment case is heard under the same set of laws, but no two annulment cases present anything like the same set of facts. The information in this book is provided in the context of a specific question, but even these questions exist in a larger and more complex context. This is why judging is both a science and an art.
In any event, it should be obvious that this book is designed neither to encourage more annulment cases nor to discourage them. Actually, this book couldn't do either, since the canon law under which annulment cases are adjudicated is already in force, and the facts assessed in an annulment case are already in place before a canon lawyer ever sees them. To put it another way, the information in this book can be used legitimately by some people to advance annulment petitions they desire and by others to resist annulment petitions they oppose. My hope in both situations is to help the people involved in or affected by the annulment process to understand the process better and to participate in it more effectively. If this, in turn, helps to ensure that the decisions reached by diocesan tribunals in annulment cases are as accurate as possible, I shall be satisfied.
— Dr. Edward Neal Peters
Question 97: I have real problems with the Church's claim to be able to annul marriages. I don't see that in the Bible anywhere. What I do see is: "What God has joined, let no man put asunder." Please comment.
Generally, I let imprecisions in a question pass because such imprecisions do not usually affect the answer. But they might in this case. The Church does not claim the power to annul marriages if by that you mean the power to transform something that was into something that is not. An annulment case, assuming it "goes affirmative," is the Church's official declaration that what seemed to have been a valid marriage was not one. I understand that this is a distinction that is hard for some people to make and that a generally cynical age might dismiss as "hocus-pocus." Well, and no disrespect intended, that is their problem. In the meantime, it is simply wrong to attribute to the Church a power that it denies it even has (1983 CIC 1141). There are many instances in which the Church is called upon to defend powers that it uses, if only in the court of public opinion. But in the case of annulments, no specific power is being used against a marriage. On the contrary, as is true for every advanced society, the Church has a mechanism for investigating the actual binding nature of the commitments (or apparent commitments) made among its members. These investigations do not negate the power of people to commit themselves to a certain status; rather these procedures are used to determine whether that power was in fact employed in a specific instance.
The above said, there are a few (very few) types of valid marriages that can be dissolved (not annulled) under certain circumstances. Marriages that were never consummated, for example, represent one kind of case in which dissolution might be possible (1983 CIC 1142). Likewise, a marriage of a previously unbaptized person could under certain circumstances, be dissolved by a second marriage (but not by the Church) if it serves the Christian life of the newly baptized spouse (see 1983 CIC 1143, 1147). Note, though, that in these latter cases, the source of the practice is not so much canon law, but St. Paul's teaching in 1 Corinthians 7:12-15. This is known as the Pauline Privilege.
Question 76: Will an annulment render the children illegitimate?
No. But this answer requires some explanation. First, let us say a few words on the notion of illegitimacy. It stinks. Babies are not illegitimate, no matter how illegitimate might have been the situation in which they were conceived. Regardless of whether their parents were married at the time of conception, babies are conceived in the image and likeness of God. Second, illegitimacy no longer carries any significant canonical consequences. For example, children born illegitimate are no longer hampered in seeking ordination as they were under the 1917 Code (see 1917 CIC 984, n. 1, as compared to 1983 CIC 1041). The only reason the concept of legitimacy is still treated in the 1983 Code at all is because some nations, by treaty with the Holy See, will accept canonical declarations of nullity as civil divorces, and that raises the possibility that post-divorce civil questions of child support and inheritance could be clouded if legitimacy were not treated in canon law. These kinds of concerns, however, are not relevant in the United States. Notwithstanding all these reasons to remove worry about canonical legitimacy, questions are still frequently raised about the effects of annulments on the legitimacy of children. Canon 1137 states that children born or conceived of a valid or putative marriage are considered legitimate. Canon 1061 § 3 calls putative those marriages that, although invalid, are nevertheless celebrated in good faith by at least one of the parties, until that time, if any, when both parties become certain of its nullity. The great majority of the formal nullity cases coming before diocesan tribunals in fact involve at least one, usually two, persons who enter marriage in good faith, hence entering at least a putative marriage, resulting in the legitimacy of the children. But there are a few exceptions to this general conclusion.
If a child is born less than one hundred days after the canonical wedding (not the civil ceremony, if there was one), he or she is not canonically presumed to be legitimate (1983 CIC 1138 § 2). Thus, the rushed religious wedding some people feel is necessary before the baby is born does not always result in the canonical legitimation of the child. Notice, however, that legitimacy arises from the timing of the wedding relative to the birth of the baby; it has nothing to do with the later annulment. Frankly, though, it should be admitted that canon law is behind the scientific curve here: It is not uncommon today for children to be born very immaturely and survive. Such children fall in between a canonical crack, even if they are legitimately conceived.
On the other hand, if a child is born to parents not married or only civilly married, but then the parents later validly, or even putatively, marry, such marriage automatically renders the child or children canonically legitimate (1983 CIC 1139). Even here, though, the later annulment of the marriage does not render the children canonically illegitimate. Finally, canon 1139 states that children can be legitimated by rescript of the Holy See.
In brief, the granting of an annulment petition does nothing to affect the legitimacy of children. That status, to the scant degree it has any canonical significance, is determined prior to the time any question of annulment is raised.
(Excerpted from Annulments and the Catholic Church by Edward Peters, J.D., J.C.D. © 2004 Ascension Press, LLC. All rights reserved. Used by permission.)
Related links:
"Catholic Divorce Mills"
"Isn't It Just a Catholic Rubber-Stamp on a Divorce?"
"Annulments in America"
© Matt C. Abbott
The following are excerpts from the book Annulments and the Catholic Church: Straight Answers to Tough Questions, authored by canon and civil lawyer Edward Peters. The book is written mostly in question-and-answer format, with 100 questions on the topic of Church annulments being answered by Dr. Peters. Thanks to Matthew Pinto and Mike Flickinger of Ascension Press for allowing me to reprint this material.
Each year more than a hundred thousand people, including thousands of non-Catholics, are directly involved in the Church's annulment process. Several times that number — family members and friends — are affected by the decisions reached in annulment cases. All of these people, to say nothing of observers from the Catholic and the non-Catholic world, have questions about annulments. Most of the questions contained in these pages derive from those posed to me as a canon lawyer, tribunal official, and teacher over the years. Indeed, I have found that people's questions touch on almost every significant aspect of the annulment process, and so it was not difficult to cover most of the key issues in a question-and-answer format. I have tried to answer these questions as I would address someone sitting in my office — that is, simply and accurately. There are, though, two advantages to answering annulment questions in writing: First, I can add a few extra details to written answers, usually concerning things that people are likely to pose as follow-ups to their original question; second, I can give references to the canon numbers upon which my answers are based. Obviously, I think the answers in this book are correct, but if one wishes to disagree with them, at least it will be clear why I said what I said. Speaking of being clear, I have avoided technical terms as much as possible in these pages, but this is a technical field and precision comes with technical terminology. Major terms are defined in the Glossary.This book can be read front-to-back, since the questions generally proceed in the same order in which they arise during a typical annulment case. The Index, on the other hand, allows for consultation on a topical basis, since there is no need to explain earlier issues if only the later ones are causing confusion.
A word of caution: Do not take this book and try to analyze your own marriage, or your parents' marriage, or your children's marriages, or your friends' marriages (see Question 100). Do not take it to a pastor or tribunal judge and say, "See? It says right here this annulment must be granted (or denied)." Because this book does not say that.
Every annulment case is heard under the same set of laws, but no two annulment cases present anything like the same set of facts. The information in this book is provided in the context of a specific question, but even these questions exist in a larger and more complex context. This is why judging is both a science and an art.
In any event, it should be obvious that this book is designed neither to encourage more annulment cases nor to discourage them. Actually, this book couldn't do either, since the canon law under which annulment cases are adjudicated is already in force, and the facts assessed in an annulment case are already in place before a canon lawyer ever sees them. To put it another way, the information in this book can be used legitimately by some people to advance annulment petitions they desire and by others to resist annulment petitions they oppose. My hope in both situations is to help the people involved in or affected by the annulment process to understand the process better and to participate in it more effectively. If this, in turn, helps to ensure that the decisions reached by diocesan tribunals in annulment cases are as accurate as possible, I shall be satisfied.
— Dr. Edward Neal Peters
Question 97: I have real problems with the Church's claim to be able to annul marriages. I don't see that in the Bible anywhere. What I do see is: "What God has joined, let no man put asunder." Please comment.
Generally, I let imprecisions in a question pass because such imprecisions do not usually affect the answer. But they might in this case. The Church does not claim the power to annul marriages if by that you mean the power to transform something that was into something that is not. An annulment case, assuming it "goes affirmative," is the Church's official declaration that what seemed to have been a valid marriage was not one. I understand that this is a distinction that is hard for some people to make and that a generally cynical age might dismiss as "hocus-pocus." Well, and no disrespect intended, that is their problem. In the meantime, it is simply wrong to attribute to the Church a power that it denies it even has (1983 CIC 1141). There are many instances in which the Church is called upon to defend powers that it uses, if only in the court of public opinion. But in the case of annulments, no specific power is being used against a marriage. On the contrary, as is true for every advanced society, the Church has a mechanism for investigating the actual binding nature of the commitments (or apparent commitments) made among its members. These investigations do not negate the power of people to commit themselves to a certain status; rather these procedures are used to determine whether that power was in fact employed in a specific instance.
The above said, there are a few (very few) types of valid marriages that can be dissolved (not annulled) under certain circumstances. Marriages that were never consummated, for example, represent one kind of case in which dissolution might be possible (1983 CIC 1142). Likewise, a marriage of a previously unbaptized person could under certain circumstances, be dissolved by a second marriage (but not by the Church) if it serves the Christian life of the newly baptized spouse (see 1983 CIC 1143, 1147). Note, though, that in these latter cases, the source of the practice is not so much canon law, but St. Paul's teaching in 1 Corinthians 7:12-15. This is known as the Pauline Privilege.
Question 76: Will an annulment render the children illegitimate?
No. But this answer requires some explanation. First, let us say a few words on the notion of illegitimacy. It stinks. Babies are not illegitimate, no matter how illegitimate might have been the situation in which they were conceived. Regardless of whether their parents were married at the time of conception, babies are conceived in the image and likeness of God. Second, illegitimacy no longer carries any significant canonical consequences. For example, children born illegitimate are no longer hampered in seeking ordination as they were under the 1917 Code (see 1917 CIC 984, n. 1, as compared to 1983 CIC 1041). The only reason the concept of legitimacy is still treated in the 1983 Code at all is because some nations, by treaty with the Holy See, will accept canonical declarations of nullity as civil divorces, and that raises the possibility that post-divorce civil questions of child support and inheritance could be clouded if legitimacy were not treated in canon law. These kinds of concerns, however, are not relevant in the United States. Notwithstanding all these reasons to remove worry about canonical legitimacy, questions are still frequently raised about the effects of annulments on the legitimacy of children. Canon 1137 states that children born or conceived of a valid or putative marriage are considered legitimate. Canon 1061 § 3 calls putative those marriages that, although invalid, are nevertheless celebrated in good faith by at least one of the parties, until that time, if any, when both parties become certain of its nullity. The great majority of the formal nullity cases coming before diocesan tribunals in fact involve at least one, usually two, persons who enter marriage in good faith, hence entering at least a putative marriage, resulting in the legitimacy of the children. But there are a few exceptions to this general conclusion.
If a child is born less than one hundred days after the canonical wedding (not the civil ceremony, if there was one), he or she is not canonically presumed to be legitimate (1983 CIC 1138 § 2). Thus, the rushed religious wedding some people feel is necessary before the baby is born does not always result in the canonical legitimation of the child. Notice, however, that legitimacy arises from the timing of the wedding relative to the birth of the baby; it has nothing to do with the later annulment. Frankly, though, it should be admitted that canon law is behind the scientific curve here: It is not uncommon today for children to be born very immaturely and survive. Such children fall in between a canonical crack, even if they are legitimately conceived.
On the other hand, if a child is born to parents not married or only civilly married, but then the parents later validly, or even putatively, marry, such marriage automatically renders the child or children canonically legitimate (1983 CIC 1139). Even here, though, the later annulment of the marriage does not render the children canonically illegitimate. Finally, canon 1139 states that children can be legitimated by rescript of the Holy See.
In brief, the granting of an annulment petition does nothing to affect the legitimacy of children. That status, to the scant degree it has any canonical significance, is determined prior to the time any question of annulment is raised.
(Excerpted from Annulments and the Catholic Church by Edward Peters, J.D., J.C.D. © 2004 Ascension Press, LLC. All rights reserved. Used by permission.)
Related links:
"Catholic Divorce Mills"
"Isn't It Just a Catholic Rubber-Stamp on a Divorce?"
"Annulments in America"
© Matt C. Abbott
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