John Lilburne's journal about annulments in the Catholic Church and civil divorce.

 

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My journal of 25 February 2002

 

 

   

Journal

1019 L Fri 1 Feb 2002

There is an article in The Australian today about the Catholic Church: "Not a law unto themselves" by Rosemary Neill. It includes:

In Australia, the church turns away people seeking annulments if they haven't already finalised divorce proceedings.

I don't know what basis she has for writing this. No evidence is presented to support the claim.

[Update of 4 Feb 2002: from the link to the Melbourne Tribunal website the claim seems justified. It says:

"Are there any effects in Civil Law?

In Australia ecclesiastical annulments have no civil effects and a civil divorce decree must be obtained before any formal action to investigate a marriage may be taken at a Catholic Tribunal."]

It presents the Catholic Church in Australia as encouraging civil divorce proceedings for those with marriages that may be valid.

I think such an approach would be contrary to the teaching in the Catechism of the Catholic Church:

Divorce

2382. The Lord Jesus insisted on the original intention of the Creator who willed that marriage be indissoluble.[Cf. Mt 5:31-32 ; Mt 19:3-9 ; Mk 10 9 ; Lk 16:18 ; 1 Cor 7:10-ll .] He abrogates the accommodations that had slipped into the old Law.[Cf. Mt 19:7-9 .]
Between the baptized, 'a ratified and consummated marriage cannot be dissolved by any human power or for any reason other than death.'[CIC, can. 1141.]

2383. The separation of spouses while maintaining the marriage bond can be legitimate in certain cases provided for by canon law.[Cf. CIC, cann. 1151-1155.]
If civil divorce remains the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance, it can be tolerated and does not constitute a moral offense.

2384. Divorce is a grave offense against the natural law. It claims to break the contract, to which the spouses freely consented, to live with each other till death. Divorce does injury to the covenant of salvation, of which sacramental marriage is the sign. Contracting a new union, even if it is recognized by civil law, adds to the gravity of the rupture: the remarried spouse is then in a situation of public and permanent adultery:


If a husband, separated from his wife, approaches another woman, he is an adulterer because he makes that woman commit adultery, and the woman who lives with him is an adulteress, because she has drawn another's husband to herself.[St. Basil, Moralia 73, 1: PG 31, 849-852.]

2385. Divorce is immoral also because it introduces disorder into the family and into society. This disorder brings grave harm to the deserted spouse, to children traumatized by the separation of their parents and often torn between them, and because of its contagious effect which makes it truly a plague on society.

2386. It can happen that one of the spouses is the innocent victim of a divorce decreed by civil law; this spouse therefore has not contravened the moral law. There is a considerable difference between a spouse who has sincerely tried to be faithful to the sacrament of marriage and is unjustly abandoned, and one who through his own grave fault destroys a canonically valid marriage.[Cf. FC 84.]

The rights of Catholics are described in The Code of Canon Law and include:

221.1 Christ's faithful may lawfully vindicate and defend the rights they enjoy in the Church before the competent ecclesiastical forum in accordance with the law. ...

So they have the right to seek annulments if they believe their marriage may be invalid. In a general sense Canon Law encourages the avoidance of all lawsuits:

Canon 1446.1 All Christ's faithful, and especially Bishops, are to strive earnestly, with due regard for justice, to ensure that lawsuits among the people of God are as far as possible avoided, and are settled promptly and without rancour. ...

This is particularly emphasized for marriage cases:

Canon 1676. Before he accepts a case and whenever there appears to be a hope of success, the judge is to use pastoral means to persuade the spouses that, if it is possible, they should perhaps validate their marriage and resume their conjugal life.

What does Rosemary Neill mean by saying "the church turns people away"? Perhaps this is simply referring to this process of pastoral persuasion. But she seems to be saying some people within the Catholic Church do not allow other members of the Catholic Church to bring cases to the Tribunal. But procedures for bringing cases are given in Canon Law:

1502 A person who wishes to sue another must present a petition to a judge who is lawfully competent.

The judge can reject the petition, but only on the grounds given in Canon 1505.2. The four grounds could be summarized as: (1) the judge or Tribunal is not competent to hear it. (2) It is beyond doubt that the plaintiff lacks the right to stand before the court. (3) The petition lacks required information. (4) The plea lacks any foundation and there is no possibility it will emerge from the process.

This rejection can be appealed to another Tribunal.

1330 L Mon 4 Feb 2002

So it seems to me that the instruction from the Melbourne Tribunal: "a civil divorce decree must be obtained before any formal action to investigate a marriage may be taken at a Catholic Tribunal" are not in accord with the Code of Canon Law.

1823 L Sat 23 Feb 2002

I have been reading Archbishop Pell's Daily Telegraph article for 10 February 2002. The whole article can be found on

He concludes:

... In the Catholic Church, through church tribunals, it is possible to obtain an annulment, a declaration that a marriage never truly existed.  The grounds for this are limited e.g. a refusal to have any children, but this possibility is not offered just for the rich and famous. 

While only a minority of cases qualify, all Catholics caught up in marriage breakdown are free to apply and the costs are minimal.

A civil divorce is necessary before an annulment case can commence.

George Pell
ARCHBISHOP OF SYDNEY

Copyright J.R. Lilburne, 1 February 2002. Last updated 30 March 2002.

Links to other sites:

Rosemary Neill

Tribunal for Melbourne Archdiocese - Questions and Answers document on annulments

Melbourne Archdiocese, new page, same answer