Why is "no hope of reconciliation" a required condition for annulment

[inthedark]

There could be a scenario in which one spouse detects that there is something irreparably wrong with the other spouse, like NPD (which is apparently the mental condition to which canon 1095.3 is most readily applied), and could desire an investigation into that spouse’s inability to assume the duties of marriage without “demonstrating” that there is “no hope” – e.g., through divorce, which is actually no demonstration of same, or through attempting to get that spouse diagnosed, which persons with PDs almost universally resist (although from what I understand such uncooperativeness would not necessarily stop an investigation into the mentally ill spouse’s lack of ability to assume). I’ve already given the analogy of wishing to move children out of a house without first setting the house on fire with conflict, assuming conflict is not already raging (or before he exhausts his own strength). But in fact I’m no longer sure why I’m bothering here. Hope, including for enlightenment and civil discourse, springs eternal, I suppose.

 

[FrDavid96]

There could be a scenario in which one spouse detects that there is something irreparably wrong with the other spouse, like NPD (which is apparently the mental condition to which canon 1095.3 is most readily applied), and could desire an investigation into that spouse’s inability to assume the duties of marriage without “demonstrating” that there is “no hope” – e.g., through divorce, which is actually no demonstration of same, or through attempting to get that spouse diagnosed, which persons with PDs almost universally resist (although from what I understand such uncooperativeness would not necessarily stop an investigation into the mentally ill spouse’s lack of ability to assume). I’ve already given the analogy of wishing to move children out of a house without first setting the house on fire with conflict, assuming conflict is not already raging (or before he exhausts his own strength). But in fact I’m no longer sure why I’m bothering here. Hope, including for enlightenment and civil discourse, springs eternal, I suppose.

No marriage tribunal will consider a petition for declaration of nullity unless the couple is already divorced and there is no hope of reconciliation.

I don’t know where you’re getting your information, but it is obviously NOT from any understanding of the Sacred Canons, especially those dealing with the procedures discussed here.

 

[inthedark]

Father:
Once again, you haven’t yet made a canonical argument (i.e., one that cites canons) or a properly theological argument (e.g., one from moral absolutes) for requiring “no hope of reconciliation” prior to petition. Only a prudential argument, to which I’ve responded, to which response I’ve asked you to respond, and you just won’t (or at least haven’t).
And you speak in ignorance if you are charging me of speaking in ignorance, at least, with regard to the application of 1095.3 to NPD and the matter of spouses uncooperative with a petition, as I have that information from a canonist of unimpeachable orthodoxy. (Well, I should qualify that: One might not consider him orthodox if one were a schismatic.)
In closing (because I think I really am done this time): Would you really be ready to stand behind the claim that a divorce is itself undeniable proof that a couple truly has “no hope of reconciling”?

 

[FrDavid96]

Father:
Once again, you haven’t yet made a canonical argument (i.e., one that cites canons)…

That much is true. I have not yet made a canonical argument.

My apologies.

Looking back, I completely failed to cite the canon.

Here it is.

Can. 1676 Before accepting a case and whenever there is hope of a favorable outcome, a judge is to use pastoral means to induce the spouses if possible to convalidate the marriage and restore conjugal living.

Now, I have done it.

 

[acanonlawyer]

Haven’t read all the posts… Has anyone quoted the pertinent canon? (Edit: I see it just was…at least the prior version.) “No hope of reconciliation” is not a phrase you’ll find in the law. This is a canon changed by the Pope a couple years ago. It now reads: “Can. 1675. The judge, before he accepts a case, must be informed that the marriage has irreparably failed, such that conjugal living cannot be restored.”

Why is this the law? Because the law already presumes that the marriage is valid, the ministers of the Church want the presumption to be honored by all (pastors, judges, the couple themselves, society at large). So, if the couple has serious and concrete reasons to doubt the validity of the marriage but they want it to be a valid one, they should do what they can to make it valid (i.e., convalidate the marriage). If they have reason to doubt the validity of the marriage and they don’t want it to be valid, then they would obviously not maintain a conjugal life and could pursue a nullity process. That’s it in a nutshell.

Dan

 

[FrDavid96]

Haven’t read all the posts… Has anyone quoted the pertinent canon? (Edit: I see it just was…at least the prior version.) “No hope of reconciliation” is not a phrase you’ll find in the law. This is a canon changed by the Pope a couple years ago. It now reads: “Can. 1675. The judge, before he accepts a case, must be informed that the marriage has irreparably failed, such that conjugal living cannot be restored.”

…

Dan

Thanks. I forgot that was one of the revised canons. It says the same thing, but in much clearer terms, and omits the convalidation part (which is a bit redundant anyway).

I do with the Vatican would update their webpages of the Canons. It’s very handy when one is already using the internet.

Edit: it also changes the role of the judge from an active one to a passive one in this regard.

 

[inthedark]

Dan:

Thank you for providing the relevant canon(s). Not the first time I’ve asked for this.

Unfortunately both wordings of the canon(s) in question have left me perplexed.

Regarding the first wording, the canon seems to be saying that the couple must be encouraged to convalidate before validity can be investigated. But this seems to put the cart before the horse. Why would a couple consider convalidation if they did not know whether their marriage was null? But perhaps the meaning is that validity will not be investigated unless the couple is open to convalidation should their marriage be discovered to be null? But then it seems that this cannot be the meaning, because the second wording (which is presumably a clarification and not a revision of the first) requires a discovery of “irreparable failure (of the relationship?)” before investigation, and surely such a couple would not be amenable to convalidating should their first attempt at marriage be ruled null.

But the second wording leaves me equally confused. If the bond is there, then what difference do “irreconcilable differences” make to the validity of the marriage, and if none, then why must a state of “irreparable failure (of the relationship)” be found as a condition for investigating validity? (N.B.: I really don’t see how it makes theological sense to speak, strictly, of the marriage, i.e., the sacramental bond, “failing.”)

All of this is to say nothing about my questions concerning how divorce can truly be taken as proof of “failure/no hope” or why “attempting to reconcile” is a condition for investigation when there are cases in which a petition goes forward even though one spouse will have nothing to do with it from the start, e.g., because she thinks there is not only “hope” but that there is nothing wrong, e.g., because she is mentally ill. I’ve also already asked how it trespasses upon the presumption of validity to allow couples to ask for a ruling whenever they might wish it, whether there is trouble or no; indeed, it seems like taking marriage seriously would require permitting any couple at any time to ask for the truth about their state, just as taking the state of souls seriously means making confession easily and readily available.

 

[FrDavid96]

@acanonlawyer
Dan, care to answer? I would love to hear it.

 

[inthedark]

This is one of the reasons why I wonder whether the petitioners’ (or petitioner’s) efforts should even be considered. There might be a value in the Church investigating, immediately upon request, without judgment of whether you’ve done enough first, whether or not your house is built on sand. Before anybody gets (more) hurt. And in fact I have it on good authority that there are cases that do go forward even if one of the (presumed) spouses is entirely uncooperative.

 

[acanonlawyer]

I could give a rushed answer (which I might end up doing anyway) or I can wait until I have more opportunity to think about this, look into it a bit more, and get some other ideas before I start spouting off. I’ll shoot for the latter and hope that I can catch up with my work in the next few days.

Dan

 

[FrDavid96]

I could give a rushed answer (which I might end up doing anyway) or I can wait until I have more opportunity to think about this, look into it a bit more, and get some other ideas before I start spouting off. I’ll shoot for the latter and hope that I can catch up with my work in the next few days.

Dan

Please do. I eagerly anticipate reading your thoughts on this thread.

 

[Gingersnaps4]

I’m curious, if the church would investigate without a divorce, and it came back that the marriage is invalid, what would you then do? Seeing as your spouse wouldn’t cooperate with a divorce and thinks things are working, etc. since she has these issues isn’t it likely that she wouldn’t change her mind even if the church said the marriage was invalid?

 

[inthedark]

In the end, it’s not about what she would do (which would likely be to appeal any finding of nullity). It’s about finding the truth. I feel there is something deeply wrong. I suspect it was deeply wrong from the beginning. It’s like going to the doctor to find out why you’re never getting better and being told there was a parasite that has to be eliminated before health could ever return, before you could begin recovering your strength, not only for your sake but for the sake of your children. (This is a horrifying analogy that has here lept to mind… but I’m going to let it stand for now.)

I wish to God that I could get such a diagnosis without the scandal of divorce, by which I mean the scandal to my children. They have been raised Catholic. If the Church were to declare that their parents had never been married, they would accept this in a way that they would never accept divorce, not even as “transitional” to an annulment (whatever that might mean). Seeking a divorce would seem to them to be an act of faithlessness, whereas seeking the judgment of the Church would not be.

 

[inthedark]

I feel the truth would set me free here. Free to deal decisively with a situation I suspect is deeply and fatally flawed – to move on, pick up the pieces and build something new, both for my kids and for their mother, after this house which I suspect is built on sand has finally fallen. I just wish I didn’t have to pull the house down myself (through divorce) in order to discover whether the house could have remained standing (that is, whether this house was truly a house at all).

As it is, I don’t know how to go forward. When in doubt, don’t pull the trigger, right? And yet it seems the Church’s policy leaves someone like me trapped in doubt, as there’s no way to know the truth without investigating, but there’s no way to investigate until one blows up the family.

Would the Church suggest there’s “no harm” in blowing up the family if the relationship on which the family is built is in a state of “irreparable failure” (Can. 1675)? That may indeed be more true than not… but how can anyone say a relationship is “irreparable” if in fact there is a sacramental bond under all that mess which is supplying all necessary graces? But then doesn’t this mean that requiring the determination of “irreparabilty” before investigation is effectively to declare the absence of the bond, that is, to declare what has yet to be proven?

(All this is to say nothing of the fact that making “irreparable failure” a condition for pursuing annulment makes annulment look like “Catholic divorce,” i.e., what two Catholics do when they finally despair of “getting along.”)

 

[acanonlawyer]

@inthedark – I must admit that I haven’t really been able to devote time/thought to this topic. I’ll respond anyway.

I understand your point about the true meaning of what a divorce is and that it may not “prove” anything. However, in the vast, vast majority of cases, it is pretty clear that when a couple divorces they do so because either one or both are no longer willing to live a conjugal life. In other words, the marital relationship has “irreparably failed.” Also, even if it is true that divorce is not conclusive proof of failure, divorce is very meaningful (as you have made clear in your posts).

Regarding the requirement (post 2015) for this “irreparable failure”–this might not have anything to do with the in/validity of the marriage. The wording of the canon clearly avoids saying that the marital/sacramental bond has failed. [Not every marriage case receives an “affirmative” decision, even though the conjugal relationship has failed.] The “failure” is “such that conjugal living cannot be restored”, not that the bond has ceased or the sacrament has ended. I wouldn’t take this “failure” too ontologically, as though once it can reasonably said that a conjugal relationship has failed it is utterly impossible for that relationship to ever be repaired/restored.

Clearly, it takes only one of the spouses to make cause “irreparable failure.” Why is this a condition? I can’t say much more than what I said earlier. It goes back to Apostolic times: the Church wants to avoid contention and the nullity process is “contentious” (in the legal sense of the term, at least). If it is not clear that the Parties are no longer willing to continue their conjugal life, then the proper course of action is to try to remedy whatever might be preventing conjugal cohabitation. Practically, also, I would hesitate to compare a judicial process to the Sacrament of Confession.

The old law spoke of the judge trying to “induce” reconciliation/convalidation. I think a reason why this was dropped is that the Judge is an agent of the external forum. Much of the work of trying to reconcile a couple would pertain to the internal forum. It is best to maintain a distinction between the internal and external forums and having a Judge delve into both is not appropriate. Besides, it can sometimes happen that Judges aren’t the most well-trained/experienced in terms of pastoral care.

In your particular circumstances, you are always welcome to speak to a local priest and/or authority at the Tribunal to see how your own bishop and Judicial Vicar interpret and apply c. 1675. If you really want to pursue a nullity case without having a civil divorce, you might want to speak to a real-life canon lawyer to see what your options truly are. It is worth pointing out that c. 1675 does not mention “civil divorce”…

Dan

 

[otjm]

Sorry, I had missed your question. Yes, I suspect that has at least something to do with it. additionally, the US is particularly blessed with not just tribunals, but technology which helps to obtain and prepare for the hearing. Many parts of the world simply do not have the underlying structures: for example, there ar large areas of Brazil in which Catholics might see a priest once very 6 months.