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
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.
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):
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
A civil divorce is irrelevant to this declaration. Consider
some of the grounds for nullity:
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
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
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.