A part from the papacy, few doctrines divide the Catholic Church from non-Catholic ecclesial communities as does the doctrine of the indissolubility of a consummated Christian marriage. Eastern Orthodox Christians are permitt ed three marriages; King Henry VIII’s desire to remarry helped lead to the formation of the Anglican Communion. Martin Luther permitted divorce in the cases of adultery, desertion, failure to fulfill conjugal duties, and “where husband and wife cannot get along together.”
The Catholic Church holds that the teaching of Jesus Christ is clear: husband and wife “are no longer two but one flesh. What therefore God has joined together, let not man put asunder.… Whoever divorces his wife and marries another commits adultery against her; and if she divorces her husband and marries another, she commits adultery” (Mark 10:8-12). Thus, in 1563, the Council of Trent decreed that
if anyone shall say that the Church has erred in having taught, and in teaching that, according to the teaching of the Gospel and the Apostles, the bond of matrimony cannot be dissolved, and that neither party—not even the innocent, who has given no cause by adultery— can contract another marriage while the other lives, and that he, or she, commits adultery who puts away an adulterous wife, or husband, and marries another; let him be anathema.
In our own time, Pope John Paul II taught that “it is a fundamental duty of the Church to reaffirm strongly… the doctrine of the indissolubility of marriage” (Familiaris Consortio, 1981). He affirmed the discipline of “not admitting to Eucharistic Communion divorced persons who have remarried,” adding that
reconciliation in the sacrament of penance, which would open the way to the Eucharist, can only be granted to those who, repenting of having broken the sign of the covenant and of fidelity to Christ, are sincerely ready to undertake a way of life that is no longer in contradiction to the indissolubility of marriage. This means, in practice, that when, for serious reasons, such as for example the children’s upbringing, a man and a woman cannot satisfy the obligation to separate, they take on themselves the duty to live in complete continence, that is, by abstinence from the acts proper to married couples.
Declarations of nullity
While most New Testament passages on marriage make no exception for divorce, our Lord says in St. Matt hew’s Gospel that “whoever divorces his wife, except for porneia (unchastity), and marries another, commits adultery.” Catholic exegetes have debated the meaning of porneia for centuries, with the Navarre Bible explaining that “it is almost certain that the phrase refers to unions accepted as marriage among some pagan peoples, but prohibited as incestuous in the Mosaic Law and in rabbinical tradition. The reference, then, is to unions radically invalid because of some impediment.… They had never in fact been joined in true marriage.”
This explanation speaks to the development of the annulment, the declaration by Church authorities that a putative marriage never truly existed because of reasons such as consanguinity or lack of consent. In the West, popes and bishops were declaring marriages invalid in the early Middle Ages, with Pope St. Gregory VII beginning to systematize ecclesiastical court procedures in the 11th century.
Over the centuries, the Church’s discipline in this matter changed several times. In 1741, Pope Benedict XIV, concerned about the ease with which annulments were granted in his day, mandated that the declaration of nullity be appealed to another court, and created the office of the defender of the bond, whose function in ecclesiastical trials is to argue for the validity of the disputed marriage.
In 1970, the bishops of the United States obtained permission from the Holy See to modify canonical procedures in the adjudication of marriage cases. One judge, and not three, could render a decision, and cases could be heard in the diocese of the person seeking the annulment; in addition, appeal of a declaration of nullity to another court became discretionary rather than obligatory. The latt er provision lapsed with the promulgation of the new Code of Canon Law in 1983, which expanded the grounds of invalid consent: “they are incapable of contracting marriage…who are not capable of assuming the essential obligations of matrimony due to causes of a psychic nature” (canon 1095).
Partly for these reasons, the number of annulments granted annually in the United States soared from 338 in 1968, to 28,918 in 1974, to a peak of 63,933 in 1991. By 2004 the number had fallen to 46,330, and it fell even further, to 35,009, in 2007—a remarkable decline of 24 percent in three years.
Despite this decline, the United States, with 5.9 percent of the world’s Catholics, still accounts for 60 percent of the Church’s 58,322 declarations of nullity (2007 statistics in the Vatican Secretariat of State’s Statistical Yearbook of the Church). Of the 35,009 declarations of nullity granted in the US, 79 percent were granted through the ordinary process, while 21 percent were granted through the documentary process.
The documentary (administrative) process is used for relatively blackand- white cases, such as those involving defect of form (which occurs when a Catholic is married outside the Church), consanguinity, marriage below the legal age, marriage to a person validly married to another, marriage (under certain circumstances) to one’s abductor or the murderer of one’s spouse, or marriage to clerics or religious not dispensed from their vows. Of the 7,355 declarations of nullity granted in the US by the documentary process, 74 percent were granted for reasons of defect of form.
The ordinary process, on the other hand, entails a trial that determines whether a valid marriage took place. Questions over the validity of consent and over perpetual and antecedent impotence are adjudicated in the ordinary process. On occasion, disputes over defect of form and other impediments to marriage are dealt with in the ordinary process. Of the 27,654 declarations of nullity granted in the US by the ordinary process, 99.6 percent were granted for reasons of defect of consent—the most oft-criticized grounds for annulment.
In the US, 6 percent of ordinary-process cases are renounced by those seeking an annulment, while an additional 6 percent are abated because the parties failed to follow through with the procedural acts necessary for a trial to take place. Of the remaining 88 percent of cases in which sentences are given, 96 percent of sentences are in favor of nullity. Sentences in favor of nullity are automatically appealed to a court of second instance in another diocese. One percent of these cases are renounced or abated, 69 percent are confirmed by decree, and 30 percent proceed to an additional trial. In this final category, 98 percent are eventually ruled null.
The United States leads the world in declarations of nullity (with 35,009 in 2007) by a very large margin; the country with the next highest annulment rate—Italy—had only 2,625 that same year. Brazil, Poland, Canada, Mexico, Spain, India, South Korea, Germany, Australia, Colombia, France, Ukraine, and Great Britain round out the world’s top 15 nations for annulments. These 15 countries account for 91 percent of declarations of nullity. On the other hand, Africa, which has 14 percent of the world’s Catholics, accounts for a mere 0.9 percent of the Church’s declarations of nullity.
An analysis of international annulment statistics reveals some similarities and some differences between the United States and the rest of the world. Of the 23,313 declarations of nullity granted outside the United States, 94 percent were granted through the ordinary process, while only 6 percent were granted through the documentary process; in the latter category, 57 percent were granted for reasons of defect of form. Since the United States accounts for 87 percent of annulments worldwide granted for defect of form, the US has a relatively high percentage of Catholics who took part in a civil marriage outside the Church and who now wish to get married within the Church.
Of the 21,879 declarations of nullity granted outside the United States by the ordinary process, 98.2 percent were granted for reasons of defect of consent. However, in 140 nations and territories, there was not a single declaration of nullity for reasons of defect of consent in 2007. Thirty-nine of these nations and territories are in Africa, 32 are in Asia, and 17 are in Europe. An additional 37 nations worldwide granted between one and a dozen declarations of nullity on defect-of-consent grounds.
There is a deep chasm between the United States and the rest of the world in the quantity of annulments granted; there is a similarly deep chasm between those nations that are relatively willing to grant annulments for reasons of defect of consent and those that are not. Twenty-eight nations grant more than 100 defect-of-consent annulments each year. From 2005 to 2007, the nations and territories with the highest ratio of defect-of-consent annulments to Catholics were Denmark, the United States, the Cook Islands, Norway, Japan, Tonga, South Korea, Thailand, Lebanon, Sweden, Samoa, and Finland.
Outside the US, 9.5 percent of first instance ordinary process cases are renounced by those seeking an annulment, while an additional 7.5 percent are abated because the parties failed to follow through with the necessary procedural acts. Of the remaining 83 percent of cases in which sentences are given, 89.8 percent of sentences are granted in favor of nullity—a bit lower, but not much, than the 96 percent rate in the US.
Of all the nations of the world in which such trials take place, only in Burkina Faso, Eritrea, Malawi, Uganda, and Vietnam do 50 percent or more of cases result in rulings against nullity. Most of the world’s nations with high numbers of annulments decide 93-97 percent of sentences in favor of nullity, with Canada (at 99.5 percent) and Australia (at 98 percent) having particularly high affirmative sentence rates and Germany (at 82 percent) and Poland (at 79.5 percent) relatively low ones.
Outside the United States, almost 3 percent of second-instance cases are renounced or abated, 69.5 percent are confi rmed by decree, and nearly 28 percent proceed to an additional trial, at which 87 percent of sentences are in favor of nullity. This rate is lower than the United States’ 98 percent rate, largely because of statistics from Europe, where only 65 percent of secondinstance trials end with a sentence in favor of nullity.
Why the disparity?
Several factors contribute to the high number of annulments granted in the United States relative to other nations, according to several sources well acquainted with the annulment process.
“Tribunals can be expensive to run and canonists are expensive to educate,” says Bishop Thomas Olmsted of Phoenix, who himself holds a doctorate in canon law. “Therefore, I would imagine that in some countries where the resources are few, and the availability for training is minimal, there is likely to be little opportunity for a Catholic to process an annulment petition.”
Bishop Daniel Conlon of Steubenville, who also holds a doctorate in canon law, agrees. “The Church in developed countries—the US in particular— has been able and willing to educate large numbers of canonists, especially priests, and operate sophisticated tribunal offices,” he says. “Churches in less developed nations generally cannot afford the money or personnel or both. I have seen firsthand how this lack is an injustice to the Catholic faithful in these places. The popes have consistently urged the ‘richer’ churches to share their canonical resources with their poorer sisters.”
The traditional law-abiding nature of Americans may also contribute to the magnitude of annulments. “We have a tendency in this country to follow the law and to abide by it,” says Bishop Olmsted. “So if the Church has a legal process for annulments, Americans will usually enter into those legal procedures.”
Father Andres Ligot, judicial vicar of the Diocese of San Jose, California, believes the early identification of cases unlikely to result in a nullity verdict may also contribute to the US’ high number of annulments.
“We are able to inform the applicants right away if sufficient grounds do not seem to be present,” says Father Ligot. “When that is the situation, applicants often choose not to pursue the process, which is time-consuming and emotionally difficult for them. Thus, weaker cases are frequently not pursued, and the result can be a higher percentage of cases that result in nullity.”
The relative immaturity of Americans at the time they make their marriage vows, combined with the collapse of catechesis, may also play a role.
“Part of the problem would seem to be due to the tremendous immaturity of many of our American young people,” says Dr. Timothy O’Donnell, president of Christendom College and a consultor to the Pontifical Council for the Family. “Today we seem to have the most prolonged period of adolescence in all of human history. It also would seem that there has been a real failure in catechesis in this area. This is one of the reasons Pope Benedict XVI has called upon the Pontifical Council for the Family to come up with some basic guidelines and norms to provide proper catechesis, beginning at a very early age, for all those who want to enter into the married state.”
Asked why US tribunals grant a higher percentage of decisions in favor of nullity than some other Western nations, Bishop Conlon says that “although the canonical process is identical throughout the world, there can be variations in the care with which the parish priests or other advocates assist petitioners with their cases, in the manner with which tribunals accept cases for trial, and in the cultural issues that impinge on the validity of marriage.”
Bishop Olmsted agrees that “there is probably a cultural difference as well in how the laws and the grounds for nullity are applied to marriage cases involving people in their respective countries.” He adds:
I think that the US situation has been unique in that there have not been the same kinds of challenges internally in the United States that have galvanized other European and non-European nations. Put another way, as the conflicts and tragedies within a culture can tend to strengthen marital relationships as families struggle for survival and friendship, other societies like the United States have enjoyed much more freedom and much less unrest internally, which has led to some extent to a kind of laziness about marriage commitments and a kind of boredom with traditional marriage, prompting Americans to lose sight of the crucial impact and importance of committed and loving marriages.
Bishop Conlon suspects that the recent decline in the numbers of declarations of nullity in the US “has to do with the continuing decline in the acceptance and practice of the faith by American Catholics. Catholics who do not practice the faith are not likely to see the need to seek a declaration of nullity in order to enter a valid marriage.” Father Ligot concurs: “Unfortunately, in today’s world some may have less sensitive consciences and not seek to have a marriage tribunal investigate issues that might leave them free to remarry in the Church.”
The decline in marriage may also play a part in the recent decline in the number of annulments in the United States. Amy Strickland, a canonist who has worked for the metropolitan tribunal of the Archdiocese of Boston, attributes the recent decline in annulments “in large part to the declining number of persons in the United States choosing to wed.” “Fewer Americans might be seeking annulments because fewer care about Catholic marriage,” adds Bai McFarlane, who founded Mary’s Advocates, a non-profit educational organization that upholds marriage and assists spouses seeking defend their marriages against petitions for annulment.
Bishop Olmsted adds that Dignitas Connubii, a 2005 Vatican instruction on marriage nullity trials, offered “the opportunity to reassert the seriousness of the nullity trial and the expectations of the law that the decision regarding the validity or invalidity of a marital bond is arrived at with moral certitude and in accord with procedural norms that cannot be ignored or dismissed as unimportant or unnecessary.”
The sexual abuse scandal may also have contributed to the decline in the number of Americans seeking annulments.
“In the years since 2002, there is a growing ‘anti-establishment’ mentality among many Catholics as a result of the sexual abuse scandal,” says Strickland.“Therefore, they do not feel the need to subject themselves to the authority of the Church when it comes to the decision to have a second wedding.”
Jan Leary, who founded Save Our Sacrament in 1997 to help spouses defend the validity of their marriages in ecclesiastical tribunals, believes that fewer Catholics are seeking declarations of nullity because “Catholics are finally opening their eyes to the hypocrisy in the Church, first via the clergy sex scandal and now—at least the individuals I talk to—seeing how hurtful the annulment process is to everyone, but especially the children.”
The annulment scandal
In their annual addresses to the Roman Rota, Popes John Paul II and Benedict XVI have offered blunt criticism of the large number of annulments granted worldwide, particularly on the grounds of defect of consent.
“For the canonist the principle must remain clear that only incapacity and not difficulty in giving consent and in realizing a true community of life and love invalidates a marriage,” said Pope John Paul in 1987. “Only the most severe forms of psychopathology impair substantially the freedom of the individual,” he said the following year, as he called upon defenders of the bond to prevent “tensions and difficulties, inevitably involved in the choice and achievement of the ideals of marriage, from being confused with the signs of a serious pathology.”
In 2009, Pope Benedict, quoting Pope John Paul, spoke of the “urgent need” of “preserving the ecclesial community from the scandal of seeing the value of Christian marriage being destroyed in practice by the exaggerated and almost automatic multiplication of declarations of nullity, in cases of the failure of marriage, on the pretext of some immaturity or psychic weakness on the part of the contracting parties.”
“We concur with those statements by both popes,” says Leary. “The current statistics on annulments mandated by US tribunals are truly a scandal, and I have appreciated the popes making these statements…Save Our Sacrament receives many, many requests for help from mostly women respondents. Many of these respondents are good, upstanding Catholics who have three or more grown children, and whose husbands are simply going through midlife crises and want an easy way to remarry in the Roman Catholic Church, which is, more often than not, granted.”
“Scandal is an attitude or behavior that leads others to do evil,” says Mac- Farlane, whose husband left her and pursued a civil divorce without her consent. “Tribunal judges give scandal to the general public, priests, and dissatisfied spouses.… Exaggerated multiplication of annulments is diocesan-sanctioned cooperation with the evil of no-fault divorce.”
“When tribunals require civil divorce, and then issue nearly automatic annulments, the public concludes the Church has no objection whatsoever to divorce,” MacFarlane adds. “Dissatisfied spouses are scandalized by the prevalent annulment mentality of local tribunals. Therefore, they choose divorce rather than persevering through difficult times.… Priests and deacons are scandalized if they are taught by their local tribunal staff that any spouse who feels his or her marriage has ‘failed’ has a right to an annulment on the basis of immaturity or psychic weakness. These priests will erroneously counsel a dissatisfied spouse to get divorced, which results in the mutilation of an intact family.”
“I do not believe that either Venerable John Paul II or His Holiness Pope Benedict XVI was pointing his critiques at the United States specifically,” Strickland says. “Instead, I believe that both pontiffs were addressing those disreputable canonists around the world who will proudly assert that they can find grounds to annul any marriage.”
Bishop Olmsted, on the other hand, believes that “it is very likely that both John Paul II and Pope Benedict XVI have in mind the United States when making these kinds of comments, particularly in light of the busy activity of American tribunals and also the influence of the American Catholic Church in the last few decades in the English-speaking world.… The popes have been vigilant in their duty to remind bishops and canonists that there is no such thing as an ‘automatic’ annulment. Moreover, the popes have recently reminded us of the immense harm that is done when seemingly all annulments are granted affirmative decisions.”
The Apostolic Signatura—the Church’s highest court, now headed by American Cardinal Raymond Burke— plays a role in bridging the gap between papal exhortations and the work of individual dioceses. “Each year the Signatura receives a report from every diocesan tribunal, reviews it, and offers recommendations for improving the work of that tribunal,” says Bishop Conlon. “I appreciate that review and take the recommendations offered for our tribunal seriously.”
“Part of the annulment scandal,” observes Dr. O’Donnell, is “that Church teaching concerning the indissolubility of the marriage bond has never changed, and this commitment, solemnly ratified by vows, remains a very important witness not only to the Church but to all society.… Although it is true that nullity declares that no marriage was ever there, when you have such an enormous number being ratified by tribunals around our country, it must give one pause, that truly it is hard to maintain the integrity the sacrament when so many are unable to effect it properly.”
“It is a grave scandal to the faithful when so many marriages fail,” concurs Bishop Olmsted. “While nearly 50 percent of all marriages end in divorce in the United States, it does not mean that every marriage that is presented to a tribunal for consideration of an annulment is likely to be invalid either.”