[Updated July 24; see editors' note and corrections at article's end.]

CHICAGO — Deacon Patrick O’Toole remembered how far away he felt from the Church 17 years ago. He wasn’t a deacon then — his wife had left, divorced him and took his children. He felt broken and angry, until a meeting with a Catholic Church official corrected his many misconceptions about the Church, sacramental marriage and annulments and put him on the path to healing.

“He had the opportunity to help me understand what it was all about,” O’Toole said. “It prompted a whole conversion experience for me.”

O’Toole re-engaged with his faith and discovered the Church’s rich vision of sacramental marriage. He went through the process to obtain a declaration of nullity, commonly referred to as an annulment; and then, several years later, he married in the Church.

Now, Deacon O’Toole helps prepare people to go through the annulment process as part of his special ministry to divorced Catholics in the Diocese of Springfield, Ill.

“Generally, I begin the process with our theology of marriage: why we believe what we believe and why the Catholic Church recognizes marriage between two Christians — just like baptism — as a sacrament, whether their denomination would call it that or not,” he said.

Deacon O’Toole said he spends two hours with divorced persons in his office and said such individuals decide whether to take the step to apply for a declaration of nullity once they understand what that process entails.

“The process is just about determining whether a [valid act of marrying] occurred at that moment [when the ceremony took place],” he said.


Grounds for Nullity

The Catholic Church presumes a person contracted a valid marriage unless the evidence completely proves otherwise.

The standard used in the canonical trial to judge a marriage null is much higher than the threshold of “beyond a reasonable doubt” used in criminal trials.

Benedict Nguyen, a canon lawyer and assistant professor at Ave Maria University, who also serves as the director of communications and the director of the Office of Sacred Worship for the Diocese of Venice, Fla., said the tribunal judges granting an annulment have to meet the standard of “moral certainty” when they rule no marriage existed.

“So if, for example, a person intended against ever having children, what is the evidence that can bring the tribunal judges to moral certainty that, before the throne of God, they can say, ‘Yes, here’s the evidence [no valid marriage existed]; this is why we decided it this way’?” he said.

“It’s more than just probability; it’s actually quite a high bar to clear,” said Nguyen

The grounds for ruling a marriage invalid fall generally under three categories: capacity, consent and (for a Catholic) canonical form.

Nguyen said the most common annulments are granted due to the lack of canonical form, such as Catholics married by a justice of the peace or a non-Catholic minister, because canon law requires a Catholic priest or deacon with faculties to officiate the marriage.

Another common reason for annulments involves capacity, such as a civil marriage with someone who was not free to marry because of a prior marriage bond.

“In these cases, all you need are the documents to show that’s the case,” he said, explaining these were among the most clear-cut declarations of nullity for the Church to grant.

However, the third category of grounds for annulment — and the most involved processes for tribunals — are marriages involving consent, where one or both of the spouses did not intend to embrace all the goods of marriage: permanence, exclusivity or openness to children, for example.

“There’s plenty of people out there who believe in divorce, but they say, ‘Oh, but that’s not going to happen to us.’ Well, that’s presumably a valid marriage with valid consent,” he said. “But if somebody says, ‘I believe in divorce and in terminating this marriage if it comes to that,’ well, that casts some serious doubts on the consent.”

Other consent cases involve psychological impediments, Nguyen said, but he said the number of these cases has dropped somewhat, as tribunal judges have been applying these grounds more appropriately over the last decade or so. The most recent Vatican clarification of the law was the 2005 instruction Dignitas Connubi. These cases can involve things such as whether mental illness, sexual abuse, traumas or addiction to drugs, alcohol or sex render a person incapable to consent to or live out marriage.

Nguyen said the tribunal has to keep in mind that the presence of a “psychic anomaly” at the time of marriage does not necessarily mean a person was unable to consent.

“Just because a person, for example, has an addiction, are we saying all persons with addictions can’t get married? No, we’re not saying that,” he said. “We have to examine whether ‘this person, because of this addiction, could not discern, consent or live out this marriage.’ It has to be that kind of one-to-one [relationship]. We have to distinguish between a capacity-consent issue and just simple moral failing.”


The Parish Phase

The parish is the first point of contact in the annulment process, and it’s where many involved in ministry to divorced persons say a parish advocate can be crucial to preparing the facts for the application.

In the last five years of his diaconate, Deacon O’Toole has helped 25 people who have come through his office obtain a declaration of nullity from the Church. As they tell their stories, he is looking for grounds for nullity in their stories that would indicate whether they might have a potential case.

 “What we’re looking for is: Was everything that is required for a [valid] marriage there from the very beginning?” he said.

The deacon said he assures many of them that they are not failures for attempting a sacramental union that was not actually valid. After the meeting, Deacon O’Toole emails them a questionnaire, asks them to work on it a piece at a time and makes himself available to answer questions. He knows what information the tribunal needs to make its determination, so if areas are vague or need more explanation, “I’ll prompt you to fill in more details,” he reassures.

Deacon O’Toole has four current cases pending before the tribunal and said it is a “lengthy process” — on average, nearly a year from start to finish in his diocese. However, the heavy lifting of thoroughly preparing the application for the tribunal takes about four-six weeks from the day people first sit in his office.


Canonical Process for Nullity

Once the application is complete, it is sent off to the diocesan tribunal, an ecclesiastical court that includes among its staff a judicial vicar, at least three judges and a canon lawyer known as the defender of the bond.

The tribunal decides whether and on which grounds the petition is accepted, Nguyen said, and then informs both civilly divorced parties once the petition, or libellus, is accepted.

“They have to let the other side know that this request has been made about the marriage,” he said. This completes the first phase.

The second phase is the tribunal’s evidentiary period, where witnesses are found and depositions are taken. The tribunal makes the evidence available for review by both parties and their canon lawyers, who can submit their rebuttals.

Then, the canon lawyers each make their arguments for why the declaration of nullity should or should not be granted. However, the Church has a third canon lawyer, called the defender of the bond, who makes sure all the reasonable arguments have been made for the validity of the marriage.

“It’s one of the safeguards the process puts in there to make sure there is adequate argumentation for [the marriage bond],” Nguyen said, adding that, sometimes, both parties want the annulment. He was once the defender of the bond for the Diocese of La Crosse, Wis., and, at times, the tribunal upheld the validity of the marriage in question because his arguments showed it was truly valid.

The third phase is the decision phase. If the majority of the judges of the case vote in favor of a declaration of nullity, then the presiding judge, called the ponens, writes the opinion. Nguyen said the ponens lays out the issue and cites the applicable canon law and jurisprudence of the Apostolic Tribunal of the Roman Rota (the Roman appeals court for marriage cases), before giving the judgment.

However, the annulment is still not yet granted. Nguyen said that in the case of an affirmative decision, an appellate tribunal in another diocese does an entire review of the case before voting on it.

“It has to have that second affirmative sentence before it is communicated to the parties as completed,” he said.

“Then it is clear to them: You’re a single person or you’re a married person,” he said, although further appeals could be made to the Roman Rota at the Vatican if one party still isn’t satisfied with the decision.


Overcoming Obstacles

Misconceptions about the declaration of nullity are common obstacles that prevent people from pursuing the annulment process. One common belief is that the declaration of nullity would make a couple’s children “illegitimate” — but Nguyen pointed out that, regardless of annulment, they were validly married under the civil law, and canon law presumes any children to be legitimate so long as one party entered into the marriage in good faith.

Another challenge is the cost, but some dioceses have eliminated fees for annulments — most recently the Dioceses of Rochester, N.Y., and Cleveland, Ohio — opting instead to fund their tribunals through their operating budgets. But Nguyen said he never encountered a tribunal that denied a person the annulment process based on inability to pay.

“If you want the process, they will work with you to make it happen,” he said.

Deacon O’Toole said that, in addition to these obstacles, filling out the paperwork can be daunting, and some people can feel embarrassed by the questions (samples of which can be found here).

“People are reluctant to get into their personal stories,” he said. When he pointed out to one woman that she had not filled out the question about her sex life, her response was: “None of your business.”

Another woman’s reluctance to tell her story, he believes, could have resulted in a decision against granting a declaration of nullity, if not for her ex-husband challenging her petition. During the questioning of witnesses, it emerged that the woman’s ex-husband had pressured her into having an abortion months before the wedding.

“Had that not come up, I don’t know what would have happened,” he said. “That was essential to the case.”


New Pastoral Practices

But not many parishes have their own Deacon O’Toole or parish advocate to help the divorced understand and apply for the declaration of nullity.

Rose Sweet, author of the Catholic’s Divorce Survival Guide and advocate for better pastoral care of divorced Catholics, said parishes could both help people with the declaration of nullity and streamline the amount of work for the tribunals by recruiting “smart and pastoral” people at the parish level to help them with their applications.

“People need an advocate who stands by them… works with them and takes their calls in the middle of the night,” she said. Sweet added that just having “a couple of people” trained in counseling the divorced through the process, explaining canon law terms and knowing how to thoroughly prepare the application for the tribunal would be a major improvement in pastoral care that most parishes could provide.

Nguyen said having trained parish advocates would be a “valuable service” the Church could provide and that parishes and the dioceses could collaborate in identifying and training suitable candidates, particularly among divorced Catholics.

“Usually people who have gone through this process before are invaluable, because they know what to expect. Plus, there is that instant connection they can have with the person or couple going through that procedure for the first time,” he said.

Candidates from the parish could then get the necessary pastoral formation and knowledge of canon law they need from a diocesan training program. 

Nguyen explained, “With the tribunal and family-life office working together, the diocese could really provide some great training for those local advocates.”

  Peter Jesserer Smith is a Register staff writer.

Note: The original version of this article did not make a clear distinction between canonically valid marriage and sacramental marriage. It has been updated in consultation with the original sources to reflect that distinction. Also the previous version incorrectly identified the Roman Rota as the Church’s highest court. That is the Supreme Tribunal of the Apostolic Signatura. The Roman Rota is the appeals court established by the pope which handles marriage cases.