Canon Law Professionals: Common Questions about Annulments

CLP Services: Common Questions about Annulments

As canonists, we get questions all the time about the annulment process. At Canon Law Professionals, we have compiled the most common questions we get asked, to provide some basic answers to the most commonly expressed concerns. These answers are not comprehensive, but are meant to be a starting point for those thinking about filing a case. When working with CLP, we spend time with our clients to make sure that all of their questions and concerns regarding their annulment process are answered to their satisfaction.

1.Is a divorced person automatically excommunicated from the Church?

2.How is an annulment different from a civil divorce?

3.Do only Catholics need annulments? Do only Catholic marriages need to be annulled?

4.Are there different types of annulment cases?

5.Is receiving a declaration of nullity expensive?

6.Why does the Church charge for annulment cases?

7.Does “who you know” or “how much you contribute” make any difference in how quickly the process takes or in the ultimate outcome of the case?

8.Why do I need a canonical procurator/advocate?

9.If I receive an annulment, will my children be illegitimate?

10.Does my ex-spouse have to agree or participate for an annulment to be granted? What is my ex-spouse is not Catholic?

11.What if my ex-spouse strenuously objects to an annulment being granted? What if I strenuously object to having my marriage declared null? Does the court ever issue a negative decision?

12.If my former spouse petitions for and receives an annulment, does it allow me to remarry as well, or do I have to also go through the process?

13.I was married for over 20 years and have children from this marriage. Will I be able to get my marriage annulled?

14.Why do I need witnesses? Who should I choose?

15.Who is going to judge my case? Are all the judges going to be priests?

16.Is the annulment process going to be similar to my divorce process? Will I have to be in a courtroom with my former spouse?

17.What if either my spouse or I have had more than one marriage? Do all my marriages “count”?

18.Are there too many annulments granted in the United States?

1.Is a divorced person automatically excommunicated from the Church?
No. Obtaining a civil divorce is a function of the civil law and civil courts, and has little relevance in canon law. The church recognizes that a civil divorce may be a necessary step to determine civil, legal, custodial and financial matters resulting from the civil termination of a marriage. Thus a divorced Catholic is not “excommunicated.” As long as you have not remarried, you are free to receive the sacraments within the Church. Without having received a declaration of nullity, the Church does not recognize the civil divorce granted by the state, and still considers you married to your spouse – even if you are no longer living with him or her. Consequently, without a canonical declaration of nullity you are not free to remarry. If you do remarry civilly or outside the Church, you are required to refrain from receiving the sacraments until you get your situation regularized.

2.How is an annulment different from a civil divorce?
The more correct term for an "annulment" is a "decree of nullity." This decree states that the marriage has been thoroughly investigated and found to be lacking in the essential characteristics of a Christian sacramental union from the time of consent. The time of consent is at one’s wedding when the parties both consented to marry. The decree of nullity certifies that despite the fact that there was a wedding, and despite the fact that the parties believed that they were married, due to various reasons a valid sacramental bond never existed. This is different from a divorce, which is a legal recognition that there was an existing and valid legal marital contract, which the legal divorce now dissolves. Canonically, if the sacramental bond did not exist, the marriage in question can be declared ecclesiastically non-binding. Thus, according to canon law, there never was a marriage, because it was null or non-existent from the beginning.

3.Do only Catholics need annulments? Do only Catholic marriages need to be annulled?
No and no. In the regular course, non-Catholics only need an annulment if they desire to marry a Catholic. But if a non-Catholic has been married to another non-Catholic, and that person now wants to marry a Catholic, then the non-Catholic is going to need an annulment before the Catholic can be validly married in the Church.

Only a Catholic is bound to marry according to the form prescribed by the Catholic Church (i.e. before a Catholic priest or deacon and at least two additional witnesses) unless dispensed from this requirement by the bishop or his delegate. However, the Church recognizes the marriage of two non-Catholics, or a Catholic who has received a dispensation from form and a non-Catholic, whether they marry in their own church/or non-Christian place of worship, another church or in a civil ceremony (justice of the peace) as long as the ceremony is valid according to civil law. From the perspective of the Catholic Church, therefore, non-Catholics are considered to be validly married persons unless the former spouse has died or the marriage has been declared null by the Catholic Church. Since the Church has the right to determine who may be married in the Catholic Church, it can make a judgment on the validity of the marriage of two non-Catholics if one requests this in order that he or she might be able to marry a Catholic in the Catholic Church.

4.Are there different types of annulment cases?
There are different types of annulment cases, depending on the circumstances of the marriage. Some are easier and quicker than others. Documentary cases, which include Absence of Form and Ligamen cases, are the simplest type of case and usually take only a few weeks to process. The documentary cases are fairly easy because they can be proven simply with the presentation of the correct documentation. However, these processes are only able to be used under very specific circumstances.

Formal cases require an extensive autobiographical essay, witness testimony, an interview, and possible review by an expert counselor, so they tend to be more difficult and often can take a year to eighteen months to complete once they have been filed. Cases that must be processed in Rome, such as Favor of the Faith and Non-Consummated Marriages, also take a considerable amount of time to prepare, in addition to the time the case takes for Rome to adjudicate. Canon Law Professionals can help you determine what the most appropriate type of case to file, and what documentation you will need to best pursue your case.

5.Is receiving a declaration of nullity expensive?
We often hear that the one thing preventing a person from getting an annulment is the cost. However, in most dioceses the cost for an annulment is quite reasonable, and if you have difficulty affording the cost, they will make arrangements to help you. In fact one should not ever be turned away from applying for an annulment because of his or her inability to pay the fee.

6.Why does the Church charge for annulment cases?
Processing annulment cases is an expensive endeavor for dioceses. Tribunals must hire competent staff, have secretarial help, and use computers and offices, and these things must be paid for. Thus, for most tribunals, the fee paid to the tribunal is not a donation to the Church; rather, it is a fee for services rendered. Some tribunals also charge for the services of a psychological expert’s review of the case if it is required by the law. However, some dioceses in the United States have financial arrangements that allow them not to
charge any fees. In these places the diocese is able to fully subsidize its tribunal.

7.Does “who you know” or “how much you contribute” make any difference in how quickly the process takes or in the ultimate outcome of the case?
In the United States, it is an “urban myth” that one can call on one’s church connections to make one’s case move faster, or that a person can “help” their case by giving a large donation to their parish or diocese. Not only is this belief false, but it calls into question the integrity of the process and of all the judges, defenders and advocates associated with the Tribunal. Cases are processed in the order in which they are received by the tribunal, and the length of time to judge a case is only affected by such things as the complexity of the case, the promptness of witness replies, and the necessity for an expert’s evaluation. This holds true whether or not the parties are Catholic.

8.Why do I need a canonical procurator/advocate?
The easy answer is because canon law requires you to have a procurator/advocate. Like a divorce, this is a legal procedure where to be able to navigate the process you need to have someone helping you that is familiar with canon law. Most dioceses have a list of advocates that they usually allow you to use. These people usually do not have degrees in canon law, but have been trained by the diocese in marriage law so that they can assist the parties in going through the annulment process. Many times one’s pastor or associate can act as your advocate. For simple marriage cases, most of the time the diocesan advocate’s help will be sufficient.

However, if you 1) have a long marriage, or 2) have unusual circumstances surrounding your marriage and divorce, or 3) have petitioned for an annulment before but received a negative, or 4) you are a Respondent who objects to receiving an annulment, you need to consider hiring a professional canonist to help you. At CLP, our procurator/advocates all have degrees in canon law and have worked extensively with marriage tribunals. We understand the grounds and the procedures, and can help you effectively present your case.

What if you like your assigned advocate and don’t necessarily want someone else to represent you during your annulment process, but just want some extra help crafting your initial autobiographical essay? CLP can do this as well, by simply working with you behind the scenes to put together a comprehensive autobiographical essay or, depending on your diocese, help you to answer the raft of questions given to you by the tribunal.

9.If I receive an annulment, will my children be illegitimate?
This is the number one question asked regarding annulments, and it is very worrisome to many parents. They are often deeply concerned that a declaration of nullity will affect the legitimate status of their children should an annulment be granted. This should not be a concern. At the time of the child’s birth, they were born of a legal marriage in civil law and a putative marriage in canon law (which means that everyone thought in good faith that the marriage was valid). So at the moment of the child's birth, he or she was civilly and canonically legitimate. An annulment DOES NOT retroactively affect a child's legitimacy.

10.Does my ex-spouse have to agree or participate for an annulment to be granted? What is my ex-spouse is not Catholic and wants nothing to do with the process? What if I do not know where my former spouse is living?
It’s not true that both spouses have to agree to petition to receive a Declaration of Nullity. Tribunal judges can hear the case, and grant an annulment even if the ex-spouse is against the idea of an annulment, or does not want to participate at all in the process. While it is always better for the case to have both parties as active participants, the case can proceed without the ex-spouse’s consent or participation. However, they will be notified by the tribunal that the case is proceeding, and will be given every opportunity to respond and participate.

On occasion, a respondent cannot be found. The case can still proceed, and the respondent in that case is declared legally absent from the case. However, you will likely be required to make a good faith effort to provide a current address for your former spouse, or at the very least show what efforts you made in trying to locate him or her.

On occasion there are situations in which a petitioner has a legal reason, such as a civil restraining order, to not want the other party to know of their whereabouts or to give them any information about themselves. In these circumstances, Canon Law Professionals can work with the tribunal to explore legal methods of protecting our client’s safety while fulfilling the requirements of the law.

11.What if my ex-spouse strenuously objects to an annulment being granted? What if I strenuously object to having my marriage declared null? Does the court ever issue a negative decision?
Contrary to popular belief, tribunals do give negative decisions. While cases that make it to the local tribunals are generally granted, there are times when clearly the marriage is in fact valid, despite the existence of a civil divorce. This more often happens with longer marriages, but it is completely dependent on the circumstances of the marriage. While CLP can guarantee the highest quality of service and representation, we cannot guarantee the outcome of your case.

There are many times when a client believes themselves to be in a valid marriage, and does not believe that the granting of a declaration of nullity is accurate or appropriate. As with all of our cases, our canonists work with our clients to help them understand the process, and to help our clients accurately and completely present their side of the story so that the tribunal can discover the truth of the matter.

12.If my former spouse petitions for and receives an annulment, does it allow me to remarry as well, or do I have to also go through the process?
A declaration of nullity declares the marriage invalid, so once it is declared invalid both parties are free to marry. It is not possible for one party to be free while the other is still bound by the former marriage. However, in some cases a “condition”, called a Monitum, is put on one or both parties. A Monitum usually calls for some action to be performed by the party before he or she is allowed to remarry in the Catholic Church. This Monitum usually consists of some form of counseling or a requirement that a person meet his or her child support obligations before they can remarry. These conditions may be placed on only one of the parties instead of affecting both parties equally.

13.I was married for over 20 years and have children from this marriage. Will I be able to get my marriage annulled?
Yes, if the case supports a finding of nullity. The tribunal examines the intentions and capability of the parties AT THE TIME OF CONSENT (the wedding) to determine if the Church should declare a marriage invalid. What then happened over the years of marriage is examined by the Court to further illustrate the capability or intentions of the person at the time of consent, but in and of themselves do not prove or disprove nullity. So, while the length of the marriage may strengthen the tribunal’s presumption that the marriage was valid, having a long marriage does not necessarily mean that the marriage is in fact valid. There are a number of grounds for invalidity recognized by Church law, and if any of these are applicable and proven, the fact that the marriage was consummated or that the marriage was long will not prevent the granting of the decree of nullity.

Many people ask how the Church can grant a declaration of nullity to a person when the other spouse appears to be an innocent party in the breakup of the marriage. Think of a doubles tennis match. Even if one player is Venus Williams giving 100% effort, the team will lose the match if the other party is incapable of playing tennis, or not mature enough to play at that level, or intends to play another game altogether. A marriage can be null even if one spouse is giving 100% to the marriage if the other spouse is not capable of fulfilling their own obligations in this marriage.

Finally, the fact that the parties have children does not affect whether nullity is going to be granted. Children are not only born of valid marriages. So, the fact that one has children with one’s spouse only means that you both were capable of having children, not that you were capable of a valid marriage.

14.Why do I need witnesses? Who should I choose?
Canon law requires that the testimony of the parties be corroborated by witnesses since the rights of two persons, the sanctity of marriage and the good of the community are all involved. The witnesses are asked about the backgrounds and personalities of the parties and about the marriage, though the questionnaires are usually not as extensive as those of the parties. Sometimes they are asked to be interviewed by the tribunal. Witnesses do not need to be experts. They just need to be people, generally family or friends, who knew you or your former spouse before or during the marriage and the problems of the marriage. Both the petitioner and the respondent are asked to provide witnesses for each case.

15.Who is going to judge my case? Are all the judges going to be priests?
The people who judge marriage cases are professional canonists who have degrees in canon law. There is usually a panel of three judges judging marriage cases. Of the three judges, two must be clerics, however in many tribunals one of the clerics is often a married deacon. The third judge is often a layperson, either a Religious or a married or unmarried layperson. So, in most tribunals, cases are not only judged by priests, but also by deacons and laypersons who are or who have been married.

16.Is the annulment process going to be similar to my divorce process? Will I have to be in a courtroom with my former spouse?
The members of the diocesan Tribunal are caring individuals who try to be sensitive to the feelings of the persons involved in this process. There is no cross-examination by a hostile lawyer or the need for you and your former spouse to be at the tribunal at the same time. Both parties are offered the opportunity to give testimony by way of a questionnaire and/or a personal interview, but they are not asked to confront each other personally. Tribunals use personal interviews in order to come to an understanding of the circumstances of the relationship, not to place guilt or blame for the breakdown of the marriage. Most tribunals make a concerted effort to make the atmosphere of the interview one of concern and gentleness.

17.What if either my spouse or I have had more than one marriage? Do all my marriages “count”?
In the event that there are multiple marriages, each marriage must be examined by the tribunal on its own merits to determine its validity. No marriage is exempt from scrutiny, regardless of its circumstances. The appropriate petition should be filed for each marriage depending on the applicable type of case, and all documentation must be obtained for each marriage. The existence of multiple marriages and the complexity it presents is one of the reasons that one should consider hiring a canon lawyer. Having a professional canonist to help you sort out what types of cases should be filed and how the multiple marriages should be addressed in one’s autobiographical essay helps your case to run more efficiently and smoothly.

18.Are there too many annulments granted in the United States?
Many people claim that the Catholic Church in the United States grants too many annulments. There are various reasons for the high percentage of annulments granted in this country, and it is not that the Church is being “soft on divorce”. First, most cases are first filtered through pastors and advocates before ever reaching the Tribunal. If the marriage is clearly valid, most times it the case stops at that level and never is actually presented to the Tribunal. Once at the Tribunal, a petitioner may chose to withdraw their case before it concludes rather than allowing a weak case to proceed to judgment. These cases never make it into the final numbers of annulments recorded. Also, in more developed countries like the United States, tribunals have the resources and staff necessary to process cases, whereas many other countries outside of Europe, North America, and Australia do not have the resources or education necessary to staff a Tribunal, much less process cases. That is why the numbers of annulments are so high when compared to the rest of the world. Finally, given the statistic that 50% of marriages in the US end in divorce (including Catholic marriages), the percentages of Catholics filing for decrees of nullity is actually quite small.

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