"Divorce" is not a word you will find in the Code of Canon Law.
God hates divorce (Malachi 2:16) and so do I.
(Image taken from the English version of the Catechism of the Catholic Church on the Vatican’s website: https://www.vatican.va/archive/ENG0015/__P87.HTM)
This is a tough post to write, and I do not wish to single out people who have limited knowledge of the law of the Catholic Church (canon law) for their difficulties in understanding it. There is a book making the rounds of a few Catholic media outlets, part of which book apparently is about the Catholic Church’s canonical/ecclesiastical tribunals, alleging how these tribunals contribute to the prevailing divorce culture of our times by “mandating” divorce. I have not read this book, and most likely will not. But to claim that any Catholic tribunal “mandates” divorce is not correct, given what the Catholic Church teaches regarding divorce.
As one can read in the image above from the Catechism of the Catholic Church, among the other strong terms, divorce is called immoral.
As such, no bishop can give formal permission for something which the Catholic Church, in its official teaching, calls immoral. Nor can the bishop’s own court — his ecclesiastical tribunal in his diocese — “mandate” something which is immoral.
An article in the National Catholic Register (https://www.ncregister.com/blog/betrayed-without-a-kiss-divorce-mandate) by the author about his new book — and the author, John Clark, is listed as a regular contributor at the National Catholic Register — also states that “[s]ome readers might be quick to point out that the Catholic Church allows divorce under some circumstances.” But this is not true either: there are no circumstances in which the Catholic Church allows divorce.
Instead, the Catechism states that divorce “can be tolerated” if it “remains the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance…” and therefore, under those conditions, “does not constitute a moral offense.”
It can be tolerated.
It is never “allowed.”
The role that a divorce plays when seeking clarity about one’s marriage in the eyes of the Catholic Church will be described below. But first, some basics.
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These basics are important to keep in mind.
God is the Author of marriage, and therefore marriage is for everyone, for people of all faiths and no faith.
As such, it is not only Catholics who have valid marriages: the Catholic Church honors all marriages as sacred, even if not sacramental (sacramental would be marriage between Catholics, or between man and a woman who are baptized non-Catholics — e.g., two Baptists, even though the Baptists don’t believe marriage is a sacrament).
Catholics must follow the Catholic form of marriage (“canonical form” — canon 1108) in order to marry validly, but the Catholic Church does not tell non-Catholics how to get married. Yet when those non-Catholics do get married, we recognize their marriage as valid.
Catholics who attempt marriage in the civil forum, or in some other non-Catholic forum, attempt marriage invalidly. That is, they wind up “not married.” It’s not like they have “Marriage Lite” and then just need an upgrade or a “blessing.” In order to be married in the eyes of the Catholic Church, they need to contract marriage — from scratch — in the Catholic Church, according to canonical form. TWO Catholics must follow canonical form, but ONE Catholic, when marrying a NON-Catholic, can be dispensed from canonical form in order to have a non-Catholic wedding.
Still, marriage enjoys the favor of the law — that is, marriage enjoys the presumption of validity. For this reason, even Catholics who have a previous marriage which was attempted in a non-Catholic ceremony or in the merely civil forum need to go through the process of declaring that marriage null due to lack or absence of the Catholic canonical form for a wedding. This is a very short process based upon documents.
Because marriage enjoys the favor of the law, the parties’ first marriage is the one that enjoys the presumption of validity. In the event that the first marriage is declared null, the second marriage (if there is one) then enjoys the presumption of validity (though obviously a “merely civil” attempt at a “second marriage” for Catholics would be invalid).
Catholics and non-Catholics alike can ask a tribunal of the Catholic Church to examine their marriage if they suspect or if they believe their marriage is invalid or null.
However, the tribunals of the Catholic Church are required by canon law not to undertake to examine a marriage as to its possible nullity or invalidity until such time as the tribunal (that is, the judge or judges for a case) is informed that the marriage has irreparably failed and that conjugal life cannot be restored between the parties (canon 1675). There are a number of reasons for this, as will be seen below.
A divorce ends the civil effects of the marriage — the primary one of which is that at least in the United States after a divorce the parties are no longer first in line to inherit any property or assets if one of them dies. In the eyes of the Catholic Church, a divorce only ends such civil effects. It does not alter the matrimonial bond, which is dissolved only by death (or, in rare cases, can also be dissolved due to non-consummation, or a non-sacramental marriage between non-Catholics can be dissolved in favor of the Catholic faith).
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The article about the new book is not the first time I have encountered this idea, that tribunals shouldn’t need to have a divorce decree as proof that common life cannot be restored between the parties before agreeing to examining a marriage as to its possible nullity or invalidity.
Some years ago I recall being asked by a theologian — a woman who had attended the same university I had in Rome — why Catholics could not ask a tribunal to see if their marriage was invalid without first providing evidence that they could not restore common life via a divorce decree.
She went on to write an article that included this topic, on Catholic Answers of all places, which quite sharply veered off course canonically: https://www.catholic.com/magazine/print-edition/the-trouble-with-troubled-marriages
I post the relevant portions here, with my comments in bold:
There are those troubled marriages in which circumstances are so dire that it’s not feasible for the couple to continue a life together and, in some cases, those marriages can be deemed to have never existed in the first place. [Those marriages — regardless of how dire one deems a “troubled marriage” — still enjoy the presumption of validity until one or both of the parties can prove the marriage is null before a tribunal of the Catholic Church, and can’t be “deemed to have never existed” without going through this process of examination at a tribunal of the Catholic Church.] But there are also marriages that could be deemed invalid or null, but nevertheless, if both spouses are willing, the original lack—whether of consent, form, or even capacity—could be corrected, enabling the couple to live fully a sacramental marriage. [Again, this is completely out in left field: marriages enjoy the presumption of validity from the moment of the wedding — so let’s first deal with form, and then consent, and then capacity. So, if it is established that the marriage was entered into by two Catholics via a non-Catholic ceremony, or by one Catholic and a non-Catholic person through a non-Catholic ceremony (and that the Catholic/non-Catholic wedding at a non-Catholic venue with a non-Catholic officiant did not have the proper dispensation from canonical form), then that is a “lack of canonical form” case, and therefore the parties can now get married in the Catholic Church from scratch. It’s not about “correcting” anything. And yes, this is called a “convalidation,” though it is also not “validating” anything, like a ticket you get stamped in order to get your car out of the parking garage, but rather it is a recognition that last time the parties attempted to marry it was without validity (sine validitas) and this time it will be with validity (cum validitas). On the other hand, if consent was absent, then there is also nothing to correct — if the Catholic spouses who got married in the Catholic Church now feel that one or both of them did not consent at the moment of the wedding, they need not worry: if they now have the desire to be married and consent to marriage — because this is really not so technical — they can certainly consider themselves as truly married, truly spouses, even though one or both of them “felt like” they were not consenting to marriage at the wedding. The bond of marriage and the sacrament of matrimony is stronger and more elastic than someone’s internal anxiety over the moment of the wedding. It’s also an unrealistic situation because, again, marriage enjoys the favor of the law — if two Catholics get married in the Catholic Church and then one or both have recurring or persistent scruples about “hm…..did I really consent to that…?”, then I think they have other problems to deal with. Of course if they truly believe they did not consent, and that therefore they are not in a marriage, then they can ask a Catholic tribunal to examine the marriage as to its possible invalidity or nullity, but that presupposes that they would not want to remain living with someone they did not consent to marry, someone they do not regard as a spouse (more on that below). In the situation of incapacity, if one of the parties was incapable of consent, or both parties were incapable, then one or both would have to prove they were incapable before a Catholic tribunal in order to overturn the presumption of validity of their marriage. And — this would be bizarre — if one or both wish to “correct” that (I’m still not sure that this would be workable at all), they would now have to demonstrate that the incapacity no longer exists and then….they would have to express consent again from scratch and get married from scratch. Honestly, I just have no idea what this theologian was thinking………..]
Whew. Ugh. I’ve had to use the word “scratch” so much that now I can’t help thinking of Scrat:
The article continues, with even more perplexing comments:
Canon law provides for this in one of two ways: either a convalidation of the marriage or a radical sanation, whereby an invalid marriage is validated retroactively back to the time when the contract was first made (CIC 1156-1165). [Sigh. No. A convalidation is as described in bold above: it is an acknowledgement that the last time two Catholics, or one Catholic and a non-Catholic person, attempted marriage in merely the civil forum or in some other non-Catholic ceremony, they wound up not married. A convalidation wedding is simply a Catholic wedding and is the opportunity to now marry “with validity” since last time it was an attempt to marry but “without validity.” A radical sanation is actually another type of convalidation — believe it or not — that can indeed retroactively “validate” a union and declare it to have been a valid marriage all along, regardless of the fact that the priest who officiated actually didn’t have delegation to officiate, or that a virulently anti-Catholic “spouse” still refuses to set foot in a Catholic parish church or stand before a Catholic priest, and other similar circumstances.]
These practices are largely unutilized in the United States. [This is an inexplicable statement, and leads me to believe she must have spoken with canon lawyers who have never practiced canon law.] In fact, most of the U.S. canonists with whom I’ve spoken are unfamiliar with them [again, I can only assume she spoke with canon lawyers who have never practiced canon law in a tribunal — which is where one truly learns the law and how to apply it], as they are with the practice of allowing a couple to seek a decree of nullity before seeking a civil divorce [that is because this is not a practice to be found in canon law outside of the Philippines, where divorce remains illegal]. Nevertheless, these are norms determined by the local bishops in the U.S. and in other countries, not by the universal Church.
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Most canon lawyers in the United States and elsewhere — at least those who actually practice as canon lawyers and/or have practiced as canon lawyers, typically in the Catholic Church’s own tribunals — certainly are very familiar with both convalidations and radical sanations. This would seem to imply that “most of the U.S. canonists with whom” the author spoke are not practicing in tribunals nor have they in the past. As for these same canonists not being familiar with allowing a couple to seek a decree of nullity before a civil divorce, the reason for them not being familiar with it is because this actually does not happen — at least not in the majority of countries in the world.
The notable exception is the Philippines, which is is the last country in the world where divorce is illegal other than Vatican City State (Malta, Chile, and Ireland were the remaining countries who eventually legalized divorce over the last 25 years or so, and Switzerland during the same period of time simply changed is previous divorce and separation laws). Additionally, there are Italy and Spain, which have agreements with the Holy See, which involve a declaration of nullity from an ecclesiastical tribunal having (some) civil effects.
Furthermore, the matrimonial laws of Mexico, for example, have changed in the last couple of decades, and are now in more conformity with the marriage laws in much of Europe and other “civil law” (not common law) countries, where all couples who wish to marry now must have a civil ceremony first, and then are free to have whatever kind of religious wedding they want. As far as I can tell, it used to be (still speaking of Mexico here — and, readers, please correct me if I am wrong as I’m not an expert on Mexican law) that the state recognized either a civil-only or a religious-only wedding. In the United States, our laws allow religious personnel to officiate at weddings, effectively functioning as agents of the state and signing the civil marriage license, but “religious-only” weddings in the United States — without a civil license — are not permitted. Nor does the Catholic Church ever allow Catholic clergy to officiate at weddings in the Catholic Church that cannot be recognized by the state (canon 1071 §1: “Except in a case of necessity, a person is not to assist* without the permission of the local ordinary at (2/) a marriage which cannot be recognized or celebrated according to the norm of civil law”). For this reason, no matter how much a Catholic priest or deacon in the United States might wish to help an undocumented couple, for example, get married in the eyes of the Catholic Church, he is not permitted to do so unless the parties can obtain a marriage license from the secular/civil authorities.
Technically, a radical sanation is another kind of convalidation — a retroactive one — though the canonical terminology can become confusing at this point. For that reason, “convalidation” is almost exclusively used for the contracting of marriage in the Catholic Church for Catholics who previously attempted to contract marriage only in a civil or other non-Catholic ceremony. And the “other kind of convalidation” — that of a radical sanation — is almost never referred to as a convaliation, but instead just goes by the name of “radical sanation” or its Latin orignal, sanatio in radice. Although a secretary in one tribunal had a drawer for these cases which she had labeled “Sanitations” — !
When a Catholic is in an invalid union — if he or she ran off and got married at city hall or had a wedding in front of a Protestant minister, etc. — they are to be encouraged to contract marriage from scratch in the Catholic Church. If for some reason the other party is hostile to the thought of getting married in front of a Catholic priest, then a radical sanation is the fall-back option — but only if it is first determined that matrimonial consent perdures between the parties.
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The question of this woman, the theologian, was an interesting one, but one I would have expected from someone who did not have formal training in Catholic theology. I can’t recall if her asking of this would have been in connection with any research for her article.
I remain surprised that Catholic Answers gave it space, as I also do that the National Catholic Register also provided Mr. Clark with room to share his ideas, no matter how well-intended.
It’s not that I am opposed to people speaking out freely — on this or other topics — but I do object to Catholic outlets fielding erroneous information, especially about canon law.
I gave the theologian the reasons often cited by a tribunal as to why they need adequate proof that conjugal living cannot be restored and that there is now no hope of reconciliation between the parties: that the Catholic Church does not wish to be drawn into any dispute between parties who are still married in the eyes of the state (few though the “alienation of affection” states are), or in property or child custody issues, in addition to the fact that before undertaking to examine marriage as to its possible nullity or invalidity, the law of the Church requires that the judge must be informed that the parties are past the point of reconciliation and that common life cannot be resumed. This is canon 1675. Without this, a petition cannot be accepted and a marriage cannot be examined as to its possible nullity or invalidity.
The judge must be “informed” — but canon law does not provide any specifics as to how the judge is to be informed. There is no mention of divorce anywhere in the Code of Canon Law, and certainly no “divorce mandate.” (N.B.: I have found a small number of tribunals in the U.S. which on their webpages list “requirements” for introducing a formal nullity case, and these few actually do list a divorce decree as one of the “requirements” for the initial introduction of a case — in addition to providing sacramental certificates, an application/petition, narrative of their early years/courtship/marriage, etc. I find this listed “requirement” problematic for a variety of reasons, but it is indeed posted on a handful of tribunal websites).
Nevertheless, what the judge must be informed of is that conjugal living — living as husband and wife — cannot be restored. This means that a point in the interpersonal relationship has been passed, beyond which the spouses no longer are living the common life proper to marriage and are not going to resume common life. She asked me the following:
“But why can’t we have our marriage examined first, and then if it’s null we could divorce after that?”
I also tried to walk her through this: imagine that a married-according-to-canonical-form Catholic couple, before obtaining a divorce, petition for their marriage to be investigated as to its possible nullity, and the tribunal eventually finds it is indeed null and void. What happens then? At the moment the matrimonial bond would be declared null in the eyes of the Catholic Church, the parties would still be in a “merely civil marriage” — and therefore would be ineligible to access the sacraments, just like all “merely civilly married” Catholics. The Catholic Church cannot take any steps that would put Catholics in that position.
I repeat: this is a step the Catholic Church cannot take — to place people in a position where they are publicly ineligible to access the sacraments.
Now imagine what probably is a more common scenario, which is that only one of the spouses petitions for a declaration of nullity (joint petitions from both spouses are rare as hen’s teeth): only one of the parties decides to challenge the matrimonial bond (as is typically the case) and the plaintiff/petitioner sends in the petition to the tribunal, while the defendant…..either has been informed by the plaintiff or finds out via the mail that the person he or she is still living common life with is asking for a tribunal to investigate their marriage as to its possible nullity.
I can only imagine the dinner conversations.
And even if the couple is living separately, the same problem would arise, namely, that in the event their marriage would be declared null, as of that moment they would still be in a “merely civil marriage,” and would have to quickly divorce — otherwise, their situation would be that of any Catholics who are in a “merely civil marriage” (that is, they have a public document that indicates they are living as husband and wife, but without actually being husband and wife in the eyes of the Catholic Church).
I’ve written about this before, but the idea that the tribunal staffers — of all people — are supposed to drop everything and work to see if they can reconcile the parties is so unrealistic that people who believe this is what should happen may have greater problems than a failed interpersonal relationship with their spouse…
First of all, the interpersonal relationship of the parties has unraveled — whether they tried to work things out or perhaps have given up too soon;
secondly, the respective families of origin of the man and woman — their parents and siblings — have not been able to intervene in any effective way;
third, other relatives and friends may have tried to help, but to no avail;
fourth, there might have been a marriage counselor or two, but counseling did not help;
fifth, the parish community — sometimes least of all the pastor — knows little if anything about what is going on with the couple, and the split can be a surprise to everyone;
sixth, divorce lawyers are consulted and retained, the wheels are set in motion, and the man or woman, or sometimes the couple together, let people know they are divorcing;
seventh, the secular courts and judges take it from there to its sometimes/often bitter end (child custody, property settlement, etc.).
And then, after all of that, like some alternate 8th Station of the Cross, or maybe — in some people’s minds — like a kind of eighth circle of hell, if one or both of the parties are Catholic (of if a person is a non-Catholic still bound by a marriage who perhaps wishes to marry a Catholic), their situation finally arrives at the local diocesan tribunal.
If anyone thinks that the staff of a Catholic tribunal can then, at that point, step in to remedy things, I would say that person is being unrealistic at best.
At best.
The high numbers of annulment cases in Mr. Clark’s article (and I assume his book as well) are not recent or current numbers, but rather the “high point” of numbers of formal nullity cases in the United States, which numbers peaked in the 1990s and have declined since that time. To the best of my knowledge, or ability to roughly estimate, the current number of annual formal nullity cases in the United States (based upon the reported numbers in the publication of proceedings of the Canon Law Society of America) is hovering around 12,000 or so in recent years, out of a Catholic population in the U.S. of about 60-70 million, of varying levels of practice, some of which cases are introduced for marriages that look place 20, 30, 40, or 50 years ago. Keep in mind as well that not only Catholics apply for annulments, but around a quarter to a third of annulments in the U.S. are granted to non-Catholics (who presumably wish to marry Catholics or become Catholic themselves). The elevated numbers of the 1990s reflect that many people up until the 1970s and ‘80s did not apply to have their marriages examined, and only when fees were lowered or dropped entirely did the numbers tick up. Up until the 1970s, tribunals typically charged the full costs associated with the formal nullity process — but the bishops of the United States decided that along with the simplified annulment norms they requested and obtained from Rome in 1970 — the “American Procedural Norms” — they would also create diocesan subsidies for nullity cases: that is, that the Catholic faithful of the diocese would subsidize the cost, with a fraction of every dollar in the collection basket going to cover most or all of the cost of an annulment for whoever applied for one. As such, with the cost now within reach for more people — though historically no one was ever denied an annulment due to financial hardship, as long as that hardship could be adequately documented — more people applied who had never thought of applying or who had delayed applying.
Mr. Clark perhaps should have engaged in some more in-depth research on this topic — and especially should have consulted a number of different canonists** who actually practice canon law.
He asks in his article:
Can anyone imagine Bishop John Fisher demanding that Catherine of Aragon obtain a civil divorce before her marriage tribunal? Or have we completely forgotten both ecclesiastical history and sacramental theology?
I would only remind him that Catherine of Aragon is not the one who wanted her marriage to Henry VIII declared null — it was Henry who wanted it. Catherine was opposed to any attempt to declare her marriage to the king invalid, before any tribunal. Also, there was no divorce in England at the time — it was not in the law and could not be effected.
Indeed if people are interested in the history of divorce, I recommend Untying the Knot: A Short History of Divorce, by Roderick Phillips, D.Phil. (Oxon), who is a history professor at Carleton University in Ottawa, Canada.
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* The person who “assists” at a wedding is the officiant or celebrant — everyone else simply “attends” the wedding.
** For the sake of full disclosure, the author of the forward to Mr. Clark’s book also studied at the same canon law school I attended in Rome, but as far as I know, while I believe she teaches canon law courses, I am not sure if she has ever held a tribunal appointment — that is I do not believe she has ever practiced and/or held an appointment as tribunal judge or defender of the bond — and thus would be more or less unfamiliar with some of tribunal praxis in the United States.