"Loose canon on annulments may get tighter" NCR

[curlycool89]

The annulment is in two phases. Usually the petition goes to the diocesan (first instance) tribunal which rules on it then submits it to the Appeal (second instance) Tribunal which affirms or reverses the decision of the first instance tribunal (in Canada that means that all annulments end up at the Canadian Appeal Tribunal in Ottawa). If the petitioner or the respondant is not satisfied, the case can be appealed to the Roman Rota which (like the Supreme Court) has the last word. Few people do this when an annulment is granted because that’s what they had wanted.

In the Kennedy case, as I understand it, she appealed the first instance decision directly to the Roman Rota which reversed the decision that the marriage had been invalid. This decision was not announced for several years.

Perhaps the Rota would reverse more on appeal but they can’t do that unless they investigate them.

I think you may have a point here. Annulments tend to be a one-sided issue (the person/people who wants the annulment). There’s no one involved who’s job it is to defend the validity of such a marriage (I guess this would be like the public prosecutor). I think we don’t because it’s such a sensitive issue.

Maybe if there was a position who’s job it was to try and prove the marriage valid, it would be harder to get an annulment.

 

[Phemie]

I think you may have a point here. Annulments tend to be a one-sided issue (the person/people who wants the annulment). There’s no one involved who’s job it is to defend the validity of such a marriage (I guess this would be like the public prosecutor). I think we don’t because it’s such a sensitive issue.

Maybe if there was a position who’s job it was to try and prove the marriage valid, it would be harder to get an annulment.

Oh, but there is such a person: the Defender of the Bond. He argues for the validity of the marriage in all cases.

Rather than the public prosecutor’s role, his is the defense attorney’s role. Just like the accused is innocent until proven guilty, the marriage is valid until proven invalid and it’s the Defender of the Bond’s job to do his best to see that it remains valid.

 

[curlycool89]

Oh, but there is such a person: the Defender of the Bond. He argues for the validity of the marriage in all cases.

Rather than the public prosecutor’s role, his is the defense attorney’s role. Just like the accused is innocent until proven guilty, the marriage is valid until proven invalid and it’s the Defender of the Bond’s job to do his best to see that it remains valid.

Yes, but it’s not his job to appeal if he thinks there’s a problem, right? That’s what I was talking about.

 

[Phemie]

Yes, but it’s not his job to appeal if he thinks there’s a problem, right? That’s what I was talking about.

Oh, I guess not. But unlike a criminal case, annulments are automatically appealed, so you do have a second look at a case. I assume there is a different Defender of the Bond at the Marriage Appeal Tribunal.

 

[Godfollower]

This is probably merely much ado about nothing. Let’s assume, hypothetically, that Rome amends Canon 1095 so that only a person formally adjudged incompetent generally is covered – in other words, you can’t use Canon 1095 unless you were actually eligible for commitment.

You’d still have Canon 1101:

Can. 1101 §1. The internal consent of the mind is presumed to conform to the words and signs used in celebrating the marriage.

§2. If, however, either or both of the parties by a positive act of the will exclude marriage itself, some essential element of marriage, or some essential property of marriage, the party contracts invalidly.

These days, lots of Americans are eligible for decrees of nullity under Canon 1101, because by a positive act of the will they exclude some essential element or property of marriage: its perpetual nature.

Every Catholic who enters into the Sacrament of Matrimony thinking “Well, if it doesn’t work out, we can always get a divorce” is affirmatively denying the perpetuity of marriage and likely has performed a positive act excluding it.

This is why many of the conservative – or, if you prefer, “orthodox” – Catholic theologians believe that the number of annulments coming out of the American Catholic Church is correct. Our society simply instills a concept of temporary marriage into our youth, and that carries over into adulthood.

To perform the Sacrament of Matrimony validly, you have to understand and intend that marriage is forever; and a lot of Americans simply don’t get that. We may not attribute a lot of annulments to Canon 1101 right now, but even if the Vatican takes Canon 1095 away, Canon 1101 will be waiting.

 

[Trader]

This is probably merely much ado about nothing. Let’s assume, hypothetically, that Rome amends Canon 1095 so that only a person formally adjudged incompetent generally is covered – in other words, you can’t use Canon 1095 unless you were actually eligible for commitment.

You’d still have Canon 1101:

These days, lots of Americans are eligible for decrees of nullity under Canon 1101, because by a positive act of the will they exclude some essential element or property of marriage: its perpetual nature.

Every Catholic who enters into the Sacrament of Matrimony thinking “Well, if it doesn’t work out, we can always get a divorce” is affirmatively denying the perpetuity of marriage and likely has performed a positive act excluding it.

This is why many of the conservative – or, if you prefer, “orthodox” – Catholic theologians believe that the number of annulments coming out of the American Catholic Church is correct. Our society simply instills a concept of temporary marriage into our youth, and that carries over into adulthood.

To perform the Sacrament of Matrimony validly, you have to understand and intend that marriage is forever; and a lot of Americans simply don’t get that. We may not attribute a lot of annulments to Canon 1101 right now, but even if the Vatican takes Canon 1095 away, Canon 1101 will be waiting.

Best post in this thread so far.

I just want to point out a few things. You don’t have to prove that one of the parties could not consent, only that he or she did not give proper consent at the wedding. In my case it was determined that my ex suffered from bi-polar disease prior to the wedding. It was her behavior from the very start of the marriage that proved the marriage to be non-sacramental and thus invalid.

A person thoroughly imbued in the contempory American culture will have great difficulty understanding what the Church requires for valid consent. These were named the three goods of marriage long ago and I doubt 10% of Catholics contemplating marriage could name them. They are fidelity, permanence, and openness to new life. Both parties must intend all three of these goods; they are non-negotiable. You cannot agree to an open marriage, a trial marriage, or a permanently childless marriage–those are non-marriages.

If you want fewer invalid marriages, authentic marriage preparation cannot begin 6 months before the wedding, or in the senior year of high school. It needs to begin by the time a child is six. Every child deserves the good example of two parents who behave like they love each other even when they encounter difficulties.

 

[dans0622]

A few points. First, the defender of the bond is has the right to appeal a sentence or make a complaint of nullity whenever he thinks it is necessary (cc. 1626 & 1628). However, when it comes to a case that has already been completed (given two conforming sentences), an appeal can be made only when new and grave proofs have been discovered. So, a change in the law would not be a basis for appeal or, for that matter, a complaint of nullity.

Second, the act of consent is what brings marriage into being and c. 1095 describes some the essential aspects of how that act of consent is formulated in a human manner. This canon was not in the 1917 Code but the principles were there because the nature of the act of consent is such that it requires the use of reason (c. 1095.1), evaluation and freedom (c. 1095.2), and the ability to fulfill the obligations of the contract to which consent is given (c. 1095.3). So, even if c. 1095 was changed or totally removed from the code of canon law, the principles would still be present because it is founded on natural law. Marriages could still be declared invalid based on those principles.

Third, yes, many people have a “divorce mentality” but it must still be presumed (cf. c. 1101.1) that people mean what they say when they marry (i.e., they think marriage is until death). Since cohabitation is rampant and there is really no stigma attached to it, if a couple has no desire for a permanent commitment they can easily remain as they are. One must conclude, then, that their desire to marry means something to them in terms of that permanent commitment. Most of the time, when someone says “I thought I could get a divorce if it didn’t work out” they will also admit “I wanted/intended to be married until death.” The last comment “trumps” the first as far as the issue of simulation goes.

Dan

 

[sw85]

Good news. Hopefully Rome will put the brakes on the American Church’s dubious annulment factory.

 

[Tony_the_mad]

In any case should our despair not be for the high number of divorces and the abysmal quality of marriage preparation in North America? Is it really surprising that in a society where ‘adolescence’ now extends into the 30s that people are incapable of committing to marriage? Even in the early 70s students graduated from high school ready to start an adult life, now that doesn’t even happen when they graduate from university.

I am all in favor of tightening up the loose cannon. But I am afraid you are correct. Abortion may be the largest civil injustice in our society today. But I think the disintegration of marriage is probably the number one threat to the Church. I am not talking about gay marriage which is small cut beside the gaping wound of premarital sex, extramarital sex, and the lack of respect for marriage that heterosexual people have.

As it now stands tightening up the loose cannon will only result in more people leaving the Church. It needs to be done, but I would prefer that the Church would focus on the issue of marriage preparation and fidelity to marriage first. Sometimes you have to stop the bleeding before closing a wound.

If only the Bishops would focus their energy on pastoral concerns instead of politics, both inside and outside of the Church.

 

[otjm]

Good news. Hopefully Rome will put the brakes on the American Church’s dubious annulment factory.

What factory?

According to CARA, the Ceter for Applied Research of the Apostolate, more people who have started the process for a decree of nullity have not received one (8%) than those who have applied and received one (7%); however, 85% of those who are divorced have not even started the process.

If more have failed to receive a decree of nullity thna those who have recevied one, that hardly sounds like a factory; and when 12 times as many have not even bothered with the process as opposed to those who have received one, that hardly indicates a “factory”.

Canon law changed because the Church reflected on the reality of what was causing so many divorces, and looked at the root causes - which were more extensive than those listed in the previous code. In the almost 70 years after the first code, a lot had been learned of how people made decisions - or fail to make them. And in addition, the code we have now came in to existence in the mid 1980’s, several decades after the start of no-fault divorce. The assumption that prior to the change in the code, almost all marriages were sacramental begs the question - there simply was no evidence.

That is not to say that in the 80’s and into the 90’s there were not poor decisions from the tribunals; anyone who is honestly looking at them can agree on that. However, that does not make the code wrong; it makes the implementation of it wrong. Slight difference. Much of that has changed, and for the better.

Focusing on one aspect of the issue and failing to recognize there are multiple issues present leads to simplistic answers to a complex question, and those answers are far too often simply wrong.

To add to the issue, the fact that so many now shack up, often repeatedly, also adds to the stew in that it creates, too ofte, a deeply held belief that permanence is not possible. We now have three generations post “no fault”; it is no wonder with few role models of what marriage is supposed to be that the youth today don’t believe that it is much more than a legal relationship, temporary in nature.