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From Parish to Tribunals - and Maybe to Rome: An Annulment Application Makes the Rounds

BY Edward Peters

November 16-22, 1997 Issue | Posted 11/16/97 at 1:00 PM

 

IN ORDER FOR an annulment to take effect in the Church, it must be declared by a Church court, known as a tribunal, acting in accord with canon law. Annulments are not granted by pastors or diocesan family life offices or as part of pre-Cana classes. Civil annulments, which are sometimes granted on the same or similar grounds as canonical annulments, are insufficient under Church law to establish the canonical invalidity of an impugned marriage because of important differences in the way state law on marriage reads as compared to canon law. Civil divorces, of course, are entirely insufficient to allow parties to contract new marriages in the Church.

Although all annulment cases must be heard by a diocesan tribunal, most cases begin as an informal interview in a parish office. Anyone interested in obtaining a declaration of nullity describes in his or her own words what happened in the marriage and states the present marital status of the involved parties. In almost all cases, the potential petitioner will be given a set of forms, known technically as a libellus but more often called an application, to complete and return, usually to the parish, but occasionally directly to the diocesan tribunal.

In addition to providing basic information such as date and place of wedding, etc., petitioners are asked to describe in as much detail as possible what the youth and upbringing of both parties was like, how the couple met, and how they interacted prior to the wedding. They will be asked to provide information on the wedding itself, what the early period of the marriage was like, how things progressed or deteriorated during the marriage, and eventually how it ended. They will also be asked to propose the names of people who could serve as witnesses in the case.

This information should be as complete and as accurate as possible. It will provide the foundation of the petitioner's case before the tribunal, and he or she will be asked to swear or affirm the truthfulness of the assertions contained therein. In many cases, a tribunal interview will follow upon these original written declarations. Curiously, though, many people still labor under the mis-impression that completing the parish-based paperwork and returning it to the pastor or the tribunal is all that is required to obtain an annulment. They are mistaken. Annulment cases require significantly more work, as will become apparent below.

Upon receiving the libellus at the tribunal, the file is first examined for the presence of necessary supporting documents such as marriage certificates and divorce decrees. One very important issue requiring examination at this early stage of the process is “jurisdiction,” i.e., the canonical authority of the tribunal to hear the particular case submitted to it. Not every tribunal is canonically authorized to hear every annulment case submitted to it.

In general, questions of jurisdiction will be handled by tribunal personnel trained in such matters, but as a rule, any diocese or archdiocese in which the wedding took place, and any diocese or archdiocese in which the respondent (the other spouse) currently has canonical domicile (basically, residence), can accept an annulment petition. Thus there is always at least one, and often two, diocesan tribunals, known respectively as the forum of contract and the forum of respondent, which are eligible to hear an annulment case.

Oftentimes, however, a third tribunal, known as the forum of the petitioner, can hear a case. This is an important procedural change that the Vatican first authorized for the United States in 1970, but which Pope John Paul II made applicable throughout the world as part of the 1983 Code of Canon Law. Briefly, it allows a petitioner to file an annulment case in the diocese in which he or she currently lives regardless of where the wedding took place and regardless of where the respondent lives. This obviously makes it much easier for people who have moved, as so many do, to file their cases in a convenient locale.

‘Friendly’Tribunals?

Unlike forum of contract and forum of respondent cases, however, not every request to hear a case in the forum of petitioner must be accepted, and the opinion (though not, strictly speaking, the consent) of respondents in such situations is sought before proceeding. While modern canon law is somewhat more flexible in providing a tribunal with the authority to hear a specific annulment case, the idea that petitioners are free to “shop around” for “friendly” tribunals is nonsense.

Once the libellus is accepted and jurisdiction over a case is established, the tribunal then begins the process of citing the respondent and seeking his or her input via an affidavit or by means of a tribunal interview. The witnesses named by the petitioner and those named by the respondent, if there are any, are also cited and asked to relate what they know about the case. Sometimes, the tribunal might also seek the opinion of medical, psychological, or psychiatric experts regarding the condition of the parties at the time of the wedding.

It is very important, of course, that respondents, Catholic or otherwise, be notified of the annulment petition and be invited to take an active part in the case. Admittedly, the Church's tribunal system does not have the means to compel respondent participation in cases, and many respondents choose to ignore communications from a Church court. Some refuse their cooperation deliberately, thinking thereby to derail the process and prevent the annulment. But canon law, like every other legal system, allows a case to proceed in the face of one's contumacious absence. Respondents who simply don't care what the tribunal does are better advised simply to make that observation in a note to the tribunal, though even here the tribunal must still inform them of their canonical rights and eventually the outcome of the case.

Inside Annulments Part II of V

Under canon law, both petitioners and respondents have the basic right to know upon what grounds their annulment case is being heard and what evidence is being used to verify or reject the petition. That is not quite the same thing, however, as saying that the parties have the right to know everything submitted to the tribunal. Both canon law and common sense recognize the authority of tribunals to withhold certain information from the parties when, for example, such information is irrelevant to the canonical questions being addressed in the case, or where such information threatens harm to the parties or to third persons.

In every situation, of course, one's fundamental right of effective participation in a case must be respected, and in a special way the rights of respondents merit safe-guarding. At the same time, it is easy to see how quickly annulment cases could, without some authority to regulate access to information, degenerate into an arena for rehashing the strife and rancor that mark so many divorces, to no one's benefit.

Tribunals are, moreover, very familiar with the problems sometimes encountered in trying to locate ex-spouses or key witnesses who have been gone for many years. They also deal often with situations in which on-going harassment and sometimes even violence marked a failed marriage. Petitioners should not hesitate to explain these situations to the tribunal when filing their cases in order to get advice on what they and the tribunal can do in particular situations. Finally, although most annulment cases are heard without the need for canonical advocates, both petitioners and respondents have the right to use canon lawyers in their cases.

Canon law prefers, and for a long time required, that cases concerning possible matrimonial nullity be heard by a panel of three degreed judges appointed by the bishop. It now permits, however, annulment cases to be heard by a single qualified judge and many dioceses have made use of this authorization in the face of heavy case loads. All of the regular canons on grounds for nullity, burdens of proof, and various procedural requirements still apply in sole-judge cases. Academically-qualified lay persons can serve as judges on tribunals in association with clerical judges, and all persons who work in any way on annulment cases are bound to confidentiality.

Agent of Accuracy

Interestingly, each annulment case requires the presence of an independent official known as the defender of the bond (DOB). It is the task of the DOB, who must be degreed in canon law, to raise every reasonable argument against declaring nullity in a particular case. The DOB performs his or her task without regard for the preferences of the parties, even when both petitioner and respondent would like to see the marriage declared null. The DOB should be regarded not as an obstacle to hearing of annulment cases, but rather as an agent helping to ensure that the decisions reached in such cases are as accurate as possible.

If following the investigation of the facts and a careful consideration of the law, the diocesan tribunal hearing the case, known as the tribunal of “first instance,” concludes that the marriage in question has been proven null it issues a decision or “sentence” to that effect and notifies both parties of the result. Either party may appeal the results, if they desire.

Even if neither party disagrees with the outcome, however, and even if the DOB, who also has the right of appeal in “affirmative” cases, agrees with the result, all cases in which the nullity of marriage is declared are automatically appealed to an appellate tribunal known as “second instance.” No annulment case is considered effective unless and until it receives two affirmative sentences, that is, until two tribunals agree that a marriage has been proven null.

The tribunal of second instance is usually another diocesan tribunal approved for service by the Vatican. It is the duty of this appellate tribunal to review the original case and, if everything appears to be in order, to confirm the decision of first instance. If the second instance tribunal does not ratify the first decision, however, it can, depending on circumstances, rehear the case itself, return it to first instance for reconsideration, or immediately issue a negative sentence, in which case, the annulment granted by first instance does not become effective.

Of course, even after the second instance tribunal has issued its conclusion, both parties have the right of appeal to Rome, although obviously petitioners tend to appeal cases that have been denied by the local tribunal, and respondents tend to appeal cases that have been granted. Besides the right of appeal, the parties to any canonical case can ask that their case be transferred to Rome prior to a final decision at the local level, but such requests do not interrupt the hearing of the case at the diocesan level unless and until Rome says otherwise.

Dr. Edward Peters is a matrimonial judge with the Tribunal of the Diocese of San Diego. His 100 Answers to Your Questions on Annulments (Basilica Press, and Simon & Schuster; 1997), is available at Catholic books stores or through Canticle Communications, 1-800-859-8415.