The annulment crisis in the Church.

Review article

Robert H. Vasoli

What God has joined together

(Oxford University Press, 1998,

252 pages, hardcover,

$40 Canadian)

The Catholic Church does not accept divorce. Jesus insisted on the original intention of the Creator who willed that marriage be indissoluble (Mt 5:31-21; 19:3-9; Mk 10:9; Lk 16:18; 1 Cor 7:10-11). However, the Church can declare the nullity of a marriage, i.e., declare that the marriage never existed (Code of Canon Law, #1095-1107; see also the Catechism of the Catholic Church, under "Divorce").

Last October Pope John Paul II, meeting with a delegation of US bishops, expressed his dissatisfaction with the number of annulments being granted to Catholics. US Catholics receive a disproportionately greater number of annulments each year.

The Holy Father said that annulments should be a last resort. "The indissolubility of marriage is a teaching that comes from Christ himself, and the first duty of pastors and pastoral workers is therefore to help couples overcome whatever difficulties arise. The referral of matrimonial cases to the tribunal should be a last resort."

The author of this book is a sociologist. After he had been married for fifteen years, he was notified that he was the respondent in the case for annulment of his marriage, which he was perfectly sure had been valid. In order to oppose the annulment he had to spend all his spare time reading about annulments and fighting to save the validity of his marriage. He has now become an expert in this matter and has decided to share with others what he has learned. He examines every aspect of annulments in the United States.

Annulments booming

The United States has 6% of the world's Catholics but grants 78% percent of the world's annulments. In 1968 the Church there granted fewer than 600 annulments; from 1984 to 1994 it granted just under 59,000 annually. But more than 90% of the cases which were appealed to the highest matrimonial court, the Roman Rota, were overturned.

The author gives several reasons for the incredible growth in American annulments;

1. There is advertising in church bulletins, Catholic newspapers, and even the secular press, that annulments are available, sometimes with a suggested guarantee that they will be granted. "Some invitations practically promise an annulment to all who apply. The promotional efforts ... may evoke responses from... spouses who dream of greener marital pastures but would not seriously consider separation and divorce were annulment not presented as a convenient and acceptable alternative."

One brochure said: "Usually once a request for annulment is accepted, a favorable decision is given. However, a careful review is made before a request is accepted....A 'favorable' decision is synonymous with annulment; evidently upholding the validity of marriage is 'unfavorable.'"

2. Most petitions are presented to judges without proper screening. "No fewer than 66 of the 165 diocesan and archdiocesan tribunals ... decided to go to trial with every petition presented."

3. A high percentage of cases that are tried end in a declaration of nullity. From 1984 to 1994 it was 97% for First Instance trials. All cases however have to have a second trial. The percentage of decisions overturned in the United States is 4/10 of 1%. "What the picture reveals is that mandatory review, and appeals leading to retrials at Second Instance, have done very little to tarnish America's reputation as the annulment capital of the universe."

4. Many matrimonial judges are not well qualified for their work, lacking a doctorate or a licentiate in canon law. Sometimes judges of the First Instance are also judges (on other cases) of the Second Instance, which is not good practice. Three judges are recommended for trials, but most often there is only one (which is allowed with permission).

5. "In practice ... many if not most tribunal experts seldom conduct a direct, face-to-face examination of either spouse." "Cases have come to my attention where the expert ... arrived at a diagnosis of defective consent solely by means of a telephone conversation with a tribunal judge .... In most judicial systems, attempts to introduce into evidence expert diagnosis of that nature would be laughed out of court."

6. Sometimes the Defender of the Bond does not have a canon law degree and his opinion can be easily overruled by a highly trained judge.

7. Respondents are usually not fully informed of all their options.

8. Rather than considering the detrimental effect on respect for the sacrament of marriage which is caused by the scandal of almost automatic annulment, and the cynicism produced in some of the parties to an annulment and in Catholics generally, those handling the annulments concentrate on sympathy for their clients, or often just for the one initiating the annulment.

9. Theologians argue that in certain papal documents, such as Gaudium et spes and Casti Connubii, the Church has changed the definition of marriage. This argument is fallacious.

10. Many judges think that, if a marriage is not an ideal one, it is not a valid marriage at all, and that therefore an annulment should be granted to any marriage that has broken up.

11. 68% of annulments today are granted because of "defective consent," which involves at least one of the parties not having sufficient knowledge or maturity to know what was involved in marriage. The ingenuity of judges in confidently asserting that such knowledge or maturity was lacking is amazing. Vasoli says that it is done by substituting "junk psychology" for sound psychology and psychiatry. He quotes the statement of one matrimonial judge: "There is no marriage which, given a little time for investigation, we cannot declare invalid."

Canon law

According to canon law, defective consent exists only when

* a person does not have the use of reason,

* there is a grave lack of discretionary judgment concerning the essential matrimonial rights and obligations,

* there is something of a psychological nature rendering a person incapable of assuming the essential obligations of marriage.

"Notwithstanding efforts by some canonists to add layers of complexity to the rights, duties, and properties of marriage," states Vasoli, "there really is not much that one must know and will to enter a valid marriage."

The Roman Rota

The popes and the Roman Rota have tried to stop what they consider to be abuses of marriage tribunals in the United States and elsewhere, as, for example, in the Netherlands, but apparently without success. Even the fact that the Rota overturned over 90% of the appeals made to it from the United States has had no observable effect.

Recently the Pope has asked bishops for "strict observance of canonical directions" concerning annulment. He said that the bishops should make certain that "the Defender of the Bond is diligent in presenting and expounding all that can reasonably be argued against the nullity." "Their tribunals," he added, should not act "as an almost automatic confirmation of the judgment of the tribunal of First Instance," and it must be kept in mind that "both parties . . . have rights which must be scrupulously respected."

He also noted that "the tribunal is to make use of the services of an expert in psychology or psychiatry who shares a Christian anthropology in accordance with the Church's understanding of the human person." Most importantly, the Pope stated that "marriage enjoys the favour of the law" (Code of Canon Law, #1060) and that "the judge may not pass sentence in favour of the nullity . . . if he has not first acquired the moral certainty of the existence of nullity; probability alone is not sufficient to decide a case."

Finally the Holy Father said: "Your responsibility as bishops . . .is to ensure that diocesan tribunals exercise faithfully the ministry of truth and justice" (Origins, Oct. 29, 1998).

Other problems

Vasoli remarks that not much is done, when an annulment is granted, to be sure that the party who is said to have had defective consent is now able to consent properly to marriage with another person, which such a party usually does, or has done already. He also points out that, though literature on how to get or grant an annulment is copious, there is very little on how to defend the validity of a marriage, as he found out when he tried to defend his own.

He writes too: "One searches the canonical literature in vain for discussion of the impact annulment has on children.... What does the experience teach them about the sanctity and permanence of marriage? And what turmoil is visited upon them if the respondent-parent insists that the marriage was valid? Why did Daddy but not Mommy remarry?"

In the end, he writes, the scandal generated by a particular annulment which people who know the spouses just can't possibly approve of "is infinitesimal compared to the scandal generated by the tribunal system. The system as a whole is scandalous."

Vasoli concludes that "the American Church suffers a runaway tribunal bent on making annulment as easy and painless as possible. The statistical evidence supporting this characterization is overpowering....The blunt truth of the matter is that an entire generation of tribunalists has been indoctrinated in the rectitude of what they do....The leading professors of canon law are precisely those largely responsible for making the system what it is....References to annulment as 'Catholic divorce' are now part of everyday speech."

Vasoli's devastating critique of the present practice of granting annulments will not change the system easily. We already see a tribunalist trying to marginalize this book by transferring attention from its contents to the mind of its author. In a review of the book in the July/August Crisis, Father Joseph Hennessy, J.C.L., of the Boston Metropolitan Tribunal, gives lip service to many of Vasoli's criticisms but tries to draw the mind of the reader away from them by accusing Vasoli of having "smoldering wrath" because of his personal experience, of persisting in "questioning the subjective good faith of the judges," of accusing them of paying only "lip service" to the magisterium, of being filled with "vitriol", and of impugning the character of tribunalists. An unbiased reader would not agree with this appraisal, which sidesteps the issues. Of course Vasoli is dealing with a personal as well as a national scandal, but he deals with the actions, not the minds, of those causing it. And the Roman Rota overtur ned the granting of an annulment to his wife.

Canada

The book deals with the United States. The only reference to Canada is: "Cardinal Edouard Gagnon...related that during a visit to Alberta he and several bishops had occasion to examine sentences handled by an officialis [a judge] who did not believe in the indissolubility of marriage." In 1997 in Canada, 3,187 First Instance cases were resolved by sentence, in which 3,146 annulments were granted and only 41 were denied. In the same year in Canada, of 2951 Second Instance appeal cases, only 29 First Instance cases were overturned.