The annulment argument: a quick quide to the two sides
There are basically two groups agitating for annulment reform, one saying that there are too many annulments, the other saying that there are too few. Let me suggest that the first group is mistaken if it thinks the annulment problem lies in the annulment process (ie, Book VII of the 1983 Code and Dignitas connubii) and that the second group seeks not so much reform of the annulment process as its effective abolishment.
The first group (those holding that there are too many annulments), can scarcely suggest any procedural reforms (short of requiring tribunals to stamp DENIED on every annulment petition) for nothing about current canon and special law makes declaring marriage nullity easy. Under current ecclesiastical law, nullity must be proven, on specific grounds, based on sworn declarations and testimony, over the arguments of an independent officer, and confirmed on appeal. There are, that I can see, no gaps in the process through which marriage cases may slip quietly but wrongly into nullity. Not even the oft-reviled Canon 1095 (the “psychological” canon upon which most annulments around the world are based) can be written off as a mere legislative novelty for it articulates (as best positive law can) jurisprudence developed by the Roman Rota itself over the last 60 or 70 years.
No, the objections of the first group to the number of annulments being declared is, I suggest, not to the annulment process but to the people running that process. Tribunal officers are, it is alleged, too naive, too heterodox, or just too lazy to reach sound decisions on nullity petitions; they treat annulments as tickets to a second chance at happiness owed to people who care enough to fill out the forms. How exactly members of this first group can reach their conclusion without extended experience in tribunal work and without adverting to the cascade of evidence that five decades of social collapse in the West and a concomitant collapse of catechetical and canonical work in the Church is wreaking exactly the disastrous effects on real people trying to enter real marriages that the Church has always warned about, escapes me. Nevertheless that is essentially their claim: the process needs no major reform, processors do.
Neither can the second group (those holding that there are too few annulments) credibly point to specific reforms of the annulment process for (with two exceptions noted below) every phase of the current annulment process is required by natural law to serve the ends of justice (and, as Pope St. John Paul II repeatedly reminded us, the annulment process is about justice—not mercy, not charity, not warm fuzzy feelings, but justice); to eliminate any of these steps would be to gut the unavoidably juridic nature of the annulment process. Natural law requires that presumptions (here, of validity) be overturned only for specific reasons (here, grounds) verified by objective information (here, declarations and testimony) subject to review by superiors (here, appeal). Remove any of these steps and, whatever ‘process’ one is left with, it’s not a legal one. Thus I say, push proponents of the second school to be clear, and what most of them must admit seeking is the “de-juridicization” of the annulment process. It’s their right, of course, to make such a proposal, but one should not confuse calls tantamount to elimination of a process with calls for reform of a process. More about that call, below.
First, though, it must be acknowledged that two aspects of the current annulment process are not required by natural law to achieve justice, namely, the defender of the bond (c. 1432) and mandatory appeal (c. 1682). These two requirements could be dropped without altering the juridic nature of the annulment process to the point of unrecognizability and, if adopted, would likely speed up the process and raise the number of affirmative results. But the defender of the bond was instituted by a pope (Benedict XIV) with decades of legal experience dealing with real human beings gained within a Church drawing on centuries of pastoral experience dealing with real human beings. I would be loath to see that office abolished. Mandatory appeal (of affirmative results only, not negatives) seems a different matter. Such a requirement, though sharing a pedigree with the defender of the bond, seldom results in reversing affirmative decisions made in first instance and amounts therefor in a many-month delay in completing cases for no obvious reason. Besides, if one does not trust the officers of first instance to reach a sound result, why should one trust the officers of second? While they sit on different cases they are often the very same people. In any case, while one could eliminate DOBs and mandatory appeal without destroying the juridic nature of the annulment process, no one really thinks that those two institutes are the behind the annulment problem or thinks that members of the second group would be satisfied with two such ancillary reforms.
No, what the second group really wants, I think, is to eliminate the annulment process precisely as a juridic process. Their proposal comes in different guises: let the couple make the determination about whether they are married (you know, because divorced couples are so good at agreeing on things), or let their pastor decide for them or their (presumably Catholic) marriage counselor, and so on. Inescapably, though, such a proposal requires this: dropping the canonical presumption that when people wed they marry validly, so we don’t need a canonical process to determine whether that presumption withstands objective scrutiny; alternatively if more brazenly, dropping the idea that Jesus meant everything he said about marriage, divorce, fornication, and adultery (and, I might add, about sharing in his Body and Blood), so that the annulment issue disappears overnight.
But take, on the other hand, all of the Lord’s teachings seriously and grant that people who wed should be accorded the presumption that they are married, and—no matter what one finally calls it—a juridic process to test that presumption and, in turn, to respect those teachings, is going to be required. Personally, I think the process currently in place largely (not perfectly, but largely) does both.
A final note: one is going to hear all sorts of other matters being raised in discussions supposedly dealing with annulments and the annulment process: but be warned, if someone starts talking about, say, the sacramentality of marriage, or ex opere operato, or canonical form, or marriages entered without Faith—all of which are very important topics—know that the topic has shifted from annulments and the annulment process to one of marriage and marriage law. Related matters, I need hardly say, but quite distinct ones.
Some problems with Cdl Scola’s ‘fourth suggestion’
Cdl. Angelo Scola of Milan (not a canon lawyer but appreciative of the connection between canon law and doctrine) is the latest high-ranking churchman to come out solidly against what Sandro Magister calls the Kasper-Bergoglio proposal in regard to Communion for divorced-and-remarried Catholics. Toward the end of his essay, however, Scola offers a ‘fourth suggestion’ for dealing with the annulment problem, namely, a non-judicial canonical process wherein bishops will decide on marriage nullity petitions. Scola’s idea, I suggest, underscores the point that the annulment process does not lend itself to easy reformation.
The main problem with Scola’s idea is not bishops serving as judges in marriage cases (such service is already authorized in cc. 1419 and 1425); the problem with Scola’s idea is something else. But before getting to the problems in Scola’s proposal, shouldn’t we first ask diocesan bishops how they might feel about being directed to decide marriage nullity cases?
Setting aside that most diocesan bishops have not looked at a canonical commentary or read a canon law article on marriage and annulments since they were seminarians, I strongly suspect that most bishops would strongly prefer not being required to choose between Mr. Smith (who is sure his marriage was null) and Ms. Smith (who is equally sure it was not); what prelate wants to be perceived as having been “pastoral” to the ex-Jones (who got their annulment) but “rigid” with the ex-Wilsons (who did not get theirs)? I’m serious, show of hands: how many bishops want to make those kinds of decisions, let alone make them on the scale that they will need to be made?
Comes now a rejoinder based on Scola’s proposal: let bishops appoint delegates for such a task. How convenient. But precisely here is the first of many reinventions of current tribunal practice that pervade Scola’s idea: tribunal judges already are episcopally-appointed annulment-deciding officers. Why should bishops invent new ones? And, speaking about these new annulment delegates: what kind of authority would they be exercising in the Church? It makes a difference (as we shall see). Would these delegates have to be clerics, degreed in canon law? If the answer to these latter questions is Yes, I must ask again, why simply reinvent the tribunal? If the answer is No, get ready for a whole new front on the power-of-orders vs. power-of-jurisdiction battle.
Turning to the actual process outlined by Scola, it recites (albeit tautologically) the importance of “fully respecting all the necessary procedures” and urges observing “formal methods of gathering and evaluating evidence”. It would make use of “qualified personnel like notaries as required by canon law”, demand written reports from the investigator and the defender of the bond, and let the petitioner (but not the respondent?!) make use of a canonical advocate. After the final decision either party could to appeal the decision to Rome. Is it not, however, obvious that this approach simply re-packages and re-markets the current tribunal process? Tribunals already use advocates, have evidence gathering techniques, employs assessor consultation, and relies on written briefs from parties and DOBs, they already have appointed decision-makers, require cases to be based on law and truth, and allow for appeals by either side. How does Scola’s proposal really change anything, except in failing to recognize the right of respondents to canonical assistance?
Could Scola’s new system serve the needs of justice? Well, I suppose, for it seems to have the basic requisites expected by natural law. But then, so does the tribunal. Why just re-label tribunal personnel and re-package tribunal procedures as some sort of “new and improved annulment process” when it’s not new, it’s not improved, and it might even be worse (in terms of respondent rights) than is the current system?
As I say, reforming annulment procedures, if reform is really what is desired, is not going to quick or easy.
Now, for the more technically inclined among my readers, let me note a few other problems with Scola’s idea.
First, it misses the fundamental orientation of the annulment process to questions of justice—an orientation inherent in nullity cases because they are investigating the validity of human contracts—when Scola points to what he thinks are parallel examples of streamlined, administrative (non-judicial) canonical procedures, namely, those “for the dissolution of a non-consummated marriage (canons 1697-1706) or for reasons of faith (canons 1143-50), or also the penal administrative procedures (canon 1720)” as if these show the soundness of administrative processes for marriage nullity petitions.
These examples cannot advance Scola’s proposal very far. A non-consummation case is a petition for a favor which of its nature is not owed in justice, this, in sharp contrast, as Pope St. John Paul II repeatedly pointed out, to an annulment petition in which nullity has been proven in accord with law. Privilege of the faith cases are based directly on divine (not natural) law have long been sui generis among matrimony related questions. They are, in any event, dissolution cases, not annulment cases, and so make questionable precedent for nullity cases. Penal cases, finally, which are actions in justice and which should correspond to natural justice, are (and have been for decades, fairly or otherwise) plagued with accusations of episcopal arbitrariness and lack of procedural transparency largely because they are not judicial in technique—hardly an impression I would think the Church wants to give in marriage cases (i.e., cases which impact tens of thousands of faithful).
Or again, as an example of imprecision that might escape the notice of non-canonists, Scola writes: “When the need presents itself and the spouses request an annulment, it becomes essential to verify rigorously whether the marriage was valid and therefore is indissoluble.” First, marriages are never, ever, ‘verified as valid’, and even if they could be so verified, mere validity does not make all marriages indissoluble—as the cases mentioned by Scola himself would show!
Or again, Scola thinks that aggrieved parties could appeal their cases to the Holy See. May I ask, exactly where to? If these are really administrative procedures, as Scola thinks, appeal would not be to the Rota (which mostly handles judicial appeals from tribunals), it would instead be cast as recourse to the bishop’s hierarchic superior, likely, the Congregation for Bishops. Does that overworked and understaffed office really want to be recipient of thousands of complaints against local bishop’s annulment decisions?
I hope these points suffice to show that genuine reform of the annulment process requires very careful study by very well-informed persons. My prayers go up for those charged with this task.