My journal of 1 February "Divorce required for an annulment"
Journal
2109 L Mon 25 Feb 2002
On Saturday I read Archbishop Pell's article in the Daily Telegraph of 10 February. He discusses divorce and the Catholic Church's annulment. He concludes:
A civil divorce is necessary before an annulment case can commence.
It does not seem consistent to me. The Pope's speech to the Roman Rota condemns divorce, as did Jesus, as does the Catechism of the Catholic Church. Why would the Catholic Church require a civil divorce before allowing people their right of going to a Tribunal for an annulment?
I looked at some books and found Archbishop Pell is not the only one with this strange position.
Monsignor Ralph Brown Marriage Annulment - In the Catholic Church, Third Edition (Kevin Mayhew Ltd, Great Britain,1990):
It is proposed to see what happens in a Tribunal from the time the first enquiry is made until the eventual decree of nullity is granted or refused. ...
Mention must be made here of divorce. Before a person can discuss the matter of nullity with a Tribunal, there must be clear evidence that the marriage has broken down. The way in which this is ensured (in countries where divorce exists) is to require anyone to have a divorce decree absolute. The Church's attitude to divorce in a particular case is neutral. ... The Church does not regard divorce as a permit to remarry. The need for a divorce to have been obtained before a marriage case can be started arises from the necessity to ensure that the marriage has broken down and that any concomitant civil litigation has been concluded. No Tribunal ever wants to be involved in civil divorce proceedings, or to be under sub-poena to give evidence or to asked for documents relating to a nullity case. (page 134-135).
Geoffrey Robinson is now an auxiliary bishop in Sydney. In 1984 he wrote Marriage, Divorce & Nullity (Dove Communications, Blackburn,Victoria, Australia):
32. Is it necessary to obtain a civil divorce before applying for a decree of nullity?
A tribunal would not issue a decree of nullity with the consequent freedom to re-marry until there had been a civil divorce. Normally the divorce would be obtained before the case is begun, as there can otherwise be complications. Normally a tribunal prefers that all civil matters (custody, property settlements, etc.) be resolved first, as otherwise conflicts from these cases can spill over into nullity cases, but it is realised that sometimes one cannot be sure that no such case will again arise, so the judges can decide that the case may go ahead. (page 75).
Another question from this book:
23. Can my former partner stop the case from being heard?
Sometimes people do attempt to do this, but it is the one right they do not have. If you have presented a case, no Church authority will stop it from being heard. ... (page 73).
John Hosie S.M. (a Marist priest) wrote Catholics, Divorce & Remarriage (E.J. Dwyer, Australia, 1991):
Divorce First
It should be noted that in some places, a petition to the tribunal can only begin after a divorce has been granted, and outstanding court actions completed (e.g. disputes over custody of children, or the property settlement). Local councils of bishops sometimes impose such requirements seeking to avoid the risk that evidence from the church's tribunal could be used in civil action. (pages 15 - 16).
On page 38 he uses this to argue another point:
... Technically, the church does not recognize divorce. But, as we noted, in a number of places the church requires Catholics to obtain a divorce before they can begin an annulment application. From English-based traditions of civil law, we might think that the people concerned are being asked to "break" the church's general law on the indissolubility of marriage, to enable the annulment case to proceed. Yet in church law this is not the case, and they are certainly not seen as being in a bad state of conscience. ...
Unlike these people I am not a priest, I have not done studies in Canon Law, I do not have years of experience on tribunals, nor do I have published books. But I think they are wrong: it does not seem consistent with Canon law to say a Tribunal can refuse to hear a case to declare the nullity of a marriage on the grounds that they do not have a civil divorce.
According to Canon 221:
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.
According to Canon 87 the diocesan Bishop:
... cannot dispense from procedural laws ...
So it seems to me he cannot change laws such as those of Canon 1505, regarding when a petition can be rejected. These are limited to: (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.
I am impressed with a book by Joseph T. Martin de Agar: A Handbook on Canon Law (1999). On page 155 he writes:
... while recognizing the competence of the State over the specifically civil aspects of marriage, the Church claims for herself the right to regulate the marriage of Catholics with regard to their validity and efficacy, as well as the power to pass judgment over these in concrete cases. ...
On page 225 he writes:
The object of the marriage nullity process is to declare whether or not the nullity of a marriage is evident. ... Therefore it is a matter of examining whether, for the reasons introduced by the petitioner, the marriage was null from the beginning. ...
A civil divorce is irrelevant to this declaration. Consider some of the grounds for nullity:
Under age
Impotence
Prior bond
Having received holy orders
Having professed a perpetual vow of chastity
Abduction for the purpose of marriage
Killing a person's spouse to marry them
A blood relationship or legal relationship
In Australia it is clear that the Church's declaration does not effect obligations under civil law. They would remain. As Father John Salvano wrote in Kairos, the magazine of the Melbourne archdiocese, on 17 February, an declaration of nullity is:
... answering a completely different question to that of a civil divorce. ...
Why would people without a civil divorce want a declaration of nullity? So that they would know if by getting a divorce they were destroying a canonically valid marriage, or not. They have a right to this information. The Church's priests should be encouraging them to get it before a civil divorce, not after one.
Archbishop Pell made the statement on 10 February 2002:
A civil divorce is necessary before an annulment case can commence.
I think this gives people the wrong impression of their rights under Canon Law. It does not seem consistent with the Pope's teaching on divorce on 28 January 2002:
... Among the initiatives should be those that aim at obtaining the public recognition of indissoluble marriage in the civil juridical order (cf. Letter to Families, n. 17). Resolute opposition to any legal or administrative measures that introduce divorce ...
professionals in the field of civil law should avoid being personally involved in anything that might imply a cooperation with divorce. ...
Copyright J.R. Lilburne 25 February 2002. Last updated 30 March 2002.
Links to other sites:
Archbishop Pell's Sydney diocese, where the Daily Telegraph article can be found