Help for the Divorced and Separated

(Healing Through an Investigation of Nullity)

SCRIPTURE: Mark 10:2-9

Some Pharisees approached him and asked, "Is it against the law for a man to divorce his wife?" They were testing him. He answered them, "What did Moses command you?" "Moses allowed us," they said, " to draw up a writ of dismissal and so to divorce." Then Jesus said to them, "It was because you were so unteachable that he wrote this commandment for you. But from the beginning of creation God made them male and female. This is why a man must leave father and mother and the two become one body. They are no longer two, therefore, but one body. So then, what God has united, man must not divide."

Present Social Situation

Several questions continue to be raised today with regard to marriage and the permanence of marriage. There are elements in our society, hidden under the guise of intellect, freedom and progress, which speak to us about what should be considered as sacred. There is little question that the single most influential factor in forming our social and moral attitudes is the media. Even a cursory glance at television displays for us an image of society in which we are somewhat less than moral and intelligent humans.

The Fathers of the Second Vatican Council addressed this depiction of humanity head on in their document the "Pastoral Constitution on the Church in the Modern World" or (Gaudium et Spes). Human beings are considered God's special gifts, stewards of creation, and therefore entitled to great dignity and respect. It only stands to reason, then, that marriage and family life are regarded as the very basis for our life here on earth, the foundation of our culture and the fundamental structure of our Church.

These basic values are challenged, openly criticized or denied by individuals and groups within our society. Consequently, more is heard about divorce and about the lack of commitment on the part of people in all areas of life. Conversely, in a world looking for answers, we in the Catholic Church are also hearing more and more about Declarations of Nullity or Annulments. People injured by the pain of divorce and the rising lack of personal responsibility tolerated in all facets of life are becoming more prevalent.

Marriage - Brief Understanding

It is meaningless to describe Declarations of Nullity without adequately understanding what marriage is. The Church views marriage as a sacrament. Therefore, as with all sacraments, if a sacrament is present, then it is present forever (i.e., once baptized, always baptized, you can never be unbaptized). Marriage is also intended to reflect, in everyday life, the love of Christ for His Church. The relationship Christ has for His Church goes beyond any sense of a mutual contract but is more precisely a covenant between God and man. Therefore, marriage is best described a covenant rather than a contract. A brief comparison of the concepts of contracts and covenants may be helpful:

Marriage is a sacred union between a man and a woman where they are permanently united as man and wife, establishing a communion of life between them in mutual fidelity. This union also provides a stable environment for the procreation and education of children. Marital life challenges people to develop a means for mutual growth to salvation and union with God (cf. Canon 1055). In this setting, the couple becomes a domestic church, a miniature or basic community reflecting the greater Church. In order for this vision of marriage to become a reality, there must be an act of faith and a sense of self-sacrifice (agapé), oblative love and a precise act of the will (see John Paul II, Allocution to the Roman Rota, January 21, 1999).

Obviously, this definition and understanding of marriage is not limited to Catholics. As a matter of fact, the Catholic Church recognizes and presumes that marriages between a man and a woman are valid and binding until proven invalid (cf. Canon 1060). Therefore, second marriages do not exist in the eyes of the Church unless it has been proven that the first marriage was indeed invalid or not binding.

Marriage Failure - Some Misconceptions

Each one of us is painfully aware of the fact that the ideal we hold and the reality we live may be two completely different things. We know that we sometimes fall short of the ideal we hold for ourselves. Marriage as a covenant exchanged between people, witnessed by a priest, judge or minister with two witnesses, can become an occasion of injury and pain if the marriage fails. Moreover, unnecessary stress and turmoil can be inflicted on people and on their consciences by misinformation concerning divorce, remarriage and their status in the Church.

One of these misconceptions is that if someone is divorced, then they are automatically cut off from the Church. This is simply not true. The Church does not accept the notion that a civil divorce has an affect on the sacramental bond of marriage. However in many cases, for serious reasons such as division of property, etc., the Church permits Catholics to seek a civil divorce to regulate their situation. A second marriage after divorce alone is a conscious choice by the individual to disregard the standards, faith and teachings of the Church in favor of this second union. By this action, the person has chosen to be excluded from the communion of believers who share the beliefs and teachings of the Church.

Some people have stated quite openly that a nullity investigation is nothing more than the Church's own form of divorce. This accusation is unfounded and minimizes the need for a search for truth regarding the binding elements of marriage in these painful situations. It is precisely because marriage is regarded as holy, a sacrament and absolutely binding, that there exists a procedure whereby marriage may be examined to ascertain whether or not there truly is or ever was a binding union. An investigation for the possible nullity of marriage is above all else a search for the truth. It is an investigation designed to discover if there was adequate consent exchanged by the parties to the marriage. Such an investigation is involved and can, at times, cause some pain to the parties when they are asked to remember some of the past events of their life. This pain, however, is not the pain of an injury inflicted, but rather the pain that accompanies healing, much like the pain of cleaning and disinfecting a festering wound.

As human beings, we have a tendency to mask or hide our emotional or even spiritual pain. We tend to deny our anxiety, our grief, our anger, our frustration, our fears and our disappointments so that we do not have to face them. This same process of denial occurs in separation and divorce, mourning the loss of a loved one, or in facing the fact of our own imminent death. The anger, pain, humiliation, guilt and frustration of divorce is masked and hidden, so that we can at least appear to function normally. We would prefer to forget the whole mess. Unfortunately, we cannot forget because our guilt, our misconceptions and our hurt continue to plague and cripple us.

Nullity Investigation - Who? What? How?

The process of investigating a marriage through Marriage Tribunal procedures allows time for healing, growth, and hopefully a new sense of strength in the faith we share. The answer we receive from the Tribunal may not be convenient, or what we want to hear. Similarly, the answers we receive from the Lord to our requests in prayer often do not meet our expectations. They do, however, on occasion, exceed them when we are open to His will.

Many feel lost or baffled when trying to find a way to begin the process for a Declaration of Nullity of their marriage. The first thing that must be done is to get in touch with the Marriage Tribunal in the Diocese. This may be accomplished by contacting the Pastor of the Parish, or by calling the Marriage Tribunal in Sudbury directly at 674-2727.

The Tribunal needs several preliminary materials before it can be determined whether or not there is adequate reason to investigate the validity or invalidity of a marriage. The person who asks the Tribunal to investigate the validity of the marriage is called the Petitioner. The Petitioner is asked to provide the preliminary material including a Life History. This Life History is to be written as a story, a guide is provided. Simple responses to the questions are not adequate. The Tribunal is searching for the truth regarding the validity of the marriage in question so the more information provided, with examples, the easier it will be for the Tribunal to come to the truth with an honest decision on the validity or invalidity of the marriage.

The Petitioner is asked to provide the Tribunal with the following documents:

1. the baptismal certificate of both the Petitioner and the first partner, who is called the Respondent

2. Church marriage certificate

3. a copy of the Decree Absolute

It is not absolutely necessary to be civilly divorced to begin a nullity investigation, however the final notification of a Declaration of Nullity is withheld until the parties have been civilly divorced.

Marriage is established by the mutual consent of two people. It is absolutely necessary that the Petitioner provide an accurate address for their first partner, or Respondent. In order to assist the Tribunal in ascertaining the truth concerning this marriage, the Petitioner is asked to provide the names and addresses of persons who knew the Parties. These persons are called Witnesses. The ideal Witness is one who knew both Parties prior to the marriage, during the marriage and after the Parties separated. It is understood that some circumstances may exist which would not allow for ideal Witnesses to be found. Witnesses may be anyone who knew something of the Parties and the marriage. The Petitioner is asked also to ascertain that the Witnesses have consented to co-operate with the Tribunal. This is usually done using a written consent form letter provided to the Petitioner by the Tribunal.

When all of the preliminary information has been gathered, it is sent to Sudbury so that a formal case may be introduced to the Toronto Regional Tribunal. From this point on, the case is now considered a formal case. The depositions of the Petitioner, Respondent and some of the Witnesses are heard under oath and transmitted to the Tribunal.

Everything Submitted Through

The Auditors and Tribunal

Personnel is Held In Strictest Confidence

Each person is interviewed individually by an Auditor. The interviews are taped on cassettes, then sent to Sudbury where they are transcribed and erased. After the necessary material has been gathered, the complete case is given to an individual appointed as Defender of the Bond who is to defend the bond of marriage, if possible. From there, the case is sent to Tribunal Judges who assess the validity of the marriage. The Parties are notified of this first decision. A time is provided for the Parties to appeal the decision. Once this time limit has passed, the case is transmitted to the National Appeal Court in Ottawa. It is once again assigned to another Defender of the Bond, and another panel of three Judges. After this review, if the Second Court agrees with the First Court, then a Notification of Nullity of Marriage may be sent to the Parties.

Some Effects of A Declaration of Nullity

A Declaration of Nullity merely states that, as far as can be determined by the Tribunal, this union is not binding. This position by the Court is held with moral certitude even though the externals of marriage appeared to have been present. In no way does the Tribunal decide moral right or wrong. The Tribunal states the fact of the validity or invalidity of the marriage. The Tribunal does not judge or blame one or another of the Parties.

A Declaration of Nullity has no effect in civil law and certainly has no effect on the legitimacy of any children born of the marriage. Children are, after all, a gift from God born into a union that was presumed valid (cf. Canon 1060). Church Law or Canon Law explicitly states that children born of a marriage that is later declared null are legitimate (cf. Canon 1137).

An Affirmative Decision, or Declaration of Nullity, declares that both Parties are free from the bond of the first marriage. They could be free to enter into a new union. It is imperative that the priest who is preparing to witness this new union contact the Chancery Office.

Costs

The costs for all of this work and effort are enormous. It should be first mentioned that whether or not any donation is given to defray the cost to the Diocese, the quality of the investigation does not depend on monetary reimbursement. A Declaration of Nullity cannot be bought nor can the Decision of the Judges be swayed by monetary considerations.

The Petitioner is asked, according to their means, to defray expenses incurred in the processing of their case. The question is not simply one of cost, but rather one of justice. Those who can afford to defray the costs of a Nullity case are often negligent in this regard. Those who cannot afford such costs often make arrangements to "pay" for their case.

The Diocese has subsidized the work of the Tribunal and the administration of justice for several years. There are, however, limits to what the Diocese can and should do to guarantee a fair and equitable system in which justice is truly served. Obviously, each situation is unique. A policy is now in place where all financial considerations of the case are to be assessed by the Judicial Vicar. There is the possibility of Diocesan subsidy or even the waiving of all costs subject to assessment and real need.

Conclusion

This outline is extremely brief and is not intended to be comprehensive. The members of the Tribunal devote their time and effort to assist our brothers and sisters who suffer the pain of a broken marriage. The primary ministry is to aid those who experience a sense of separation from the Church and God as a result of their marital situation.

For further information, please call the Marriage Tribunal at 674-2727 Monday to Friday, 8:30 a.m. to 4:30 p.m. We will try our best to help heal the wounds of a broken marriage.