What is marriage?

The Catholic Church understands marriage to be a “covenant, by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of children” (Canon 1055, Code of Canon Law).

When both parties are baptized, a valid, consummated marriage is also a sacrament. A baptized bride and the groom administer this sacrament to one another; they are the ministers of Christian marriage. When they exchange proper consent they bring into being a binding bond. Every marriage is presumed to be valid, because it is presumed that the ministers of the sacrament are ready, willing and able to make a permanent and exclusive commitment to each other on the day of their wedding.

What is a declaration of invalidity?

Sometimes the presumption that every marriage is valid can be overturned in a particular case by evidence to the contrary. Every divorced person has the right to petition a Church court to examine his/her marriage and determine if it was indeed a valid marriage. If, after a careful investigation, the court finds to the contrary, it will issue a declaration of invalidity, which is a formal recognition that an essential element of marriage was missing at the time of consent.

This is not a declaration that a marriage once existed but now is ended, which is what is established in a civil divorce. In other words, a declaration of invalidity is not a Catholic form of divorce. The Tribunal examines not whether there were valid reasons for a marriage to end, but rather, whether the marriage was valid from the beginning.

Furthermore, a declaration of invalidity does not cancel out what existed between the parties to the marriage. It does not state that there never was a relationship, or that there was no love, or that there was ill will or moral fault on the part of either party when s/he entered the marriage. It simply states that the marriage in question, because of some defect that was present at the time of consent, was never actually a marriage as understood by Catholic theology and law. Therefore, both of the parties to the marriage are declared to be free to marry in the Catholic Church, since it is the marriage bond that is declared invalid.

Although the Tribunal recognizes that this process requires parties to revisit painful and sensitive areas, it hopes that the process ultimately will be a healing experience for them. The process may help them view the previous marriage in a new light and let go of old hurts and doubts. It can help parties learn something about themselves, bring closure to an unsuccessful marital relationship, and move on to a more joyful and peaceful life.

Does a declaration of invalidity make the children born of the union illegitimate or have any civil effects?

Many people are confused about the impact of a declaration of invalidity upon the children born of the union. There is a common misconception that a declaration of invalidity renders children illegitimate. In truth, however, the status of children is not affected by a declaration of invalidity. Church law specifically protects the rights, dignity and status of children (Canon 1137, Code of Canon Law).

A declaration of invalidity also does not affect natural or civil obligations in the aftermath of a divorce, such as child support, visitation rights, alimony, and property or inheritance rights. This process is conducted solely for religious purposes; it says nothing about the civil effects of a marriage relationship. It seeks to protect the dignity and sacredness of marriage, while at the same time protecting the rights of persons.

Why does the Church require a divorced person to obtain a declaration of invalidity before remarrying in the Church?

Marriage is viewed in the Old Testament as an image of God’s relationship with God’s people. God established marriage as a holy institution for all people and for all time. We read in the book of Genesis that in the beginning, God created human beings male and female. When a man leaves his father and mother and marries a woman, the two of them become one body (2:24).

After quoting this passage from Genesis, Jesus, in Mark’s Gospel, says, “Therefore let no one separate what God has joined” (10:9). Jesus used rather strong language in discussing the sanctity of marriage. In the Gospel of Mark, he declares, “Whoever divorces his wife and marries another commits adultery against her; and if she divorces her husband and marries another, she commits adultery” (10:11-12). Luke reports Jesus saying substantially the same thing (16:18).

Paul reiterates this solemn teaching in his first letter to the Corinthians: “To those now married … I give this command (though it is not mine; it is the Lord’s): a wife must not separate from her husband. If she does separate, she must either remain single or become reconciled to him again. Similarly, a husband must not divorce his wife” (7:10-11). He also writes in his letter to the Ephesians that the love of a husband and wife for one another reflects Christ’s love for the Church (5:21-32).

For two thousand years, the Catholic Church has held fast to the teaching of Jesus Christ that it is God’s plan that marriage is to be an enduring and exclusive partnership between a man and a woman. The process of investigating a marriage to determine if a declaration of invalidity can be given is a response to the strength of this teaching. Beginning with the presumption that marriages are binding and lifelong, the Tribunal, when asked, seeks to determine if the couple’s consent was defective for some reason. If it was, there never was a valid marriage bond.

When is a declaration of invalidity needed?

If a Catholic who was in a previous marriage wishes to marry in the Catholic Church, s/he is not free to do so unless his/her spouse has died or the Church has investigated the former marriage and declared it to be invalid.

Moreover, since every marriage is presumed to be a true and valid marriage, persons who are not Catholic who marry according to the regulations of civil law also enter presumably valid unions. Therefore, a Catholic is not free to marry a divorced person who is not Catholic unless the former spouse of this person has died, or a tribunal has determined that the previous marriage was invalid and hence the union is not binding.

What is the process for obtaining a declaration of invalidity?

– Completion of a Petition. 
A petitioner (a party to an unsuccessful marriage who petitions a tribunal for a declaration of invalidity) makes an appointment with an advocate (a priest or designated pastoral minister who represents the party before the court) and visits with the advocate about his/her former marriage. The advocate helps the petitioner complete the petition, which gives basic information (names; addresses; dates of birth, marriage and divorce) and, briefly, the reasons why there might be grounds for a declaration of invalidity.

– Acceptance of the Petition and Citation of the Respondent. 
The Tribunal notifies the petitioner that the petition is accepted and cites the respondent, indicating that the petition has been made and accepted. Both parties are informed of the grounds proposed by the court and are asked to return a form indicating whether they accept or object to the grounds.

– Testimony of the Parties. 
A Tribunal staff person interviews the petitioner to obtain additional information specific to the grounds of the case. If the respondent has chosen to participate, s/he will be interviewed as well. The Tribunal will never require the parties to appear together.

– Gathering of Additional Proofs. 
The Tribunal contacts witnesses, i.e., persons identified by the parties to the marriage, who knew them well and are willing to offer objective and insightful information. Ideally, the witnesses are able to provide information about the time leading up to the marriage, the marriage itself, and the reasons for the break-up of the marriage. When all the evidence is collected, the parties are notified of their right to review it if they so choose. Then, the defender of the bond (a member of the Tribunal designated to protect the marriage bond) evaluates the case and proposes everything which reasonably can be brought forth against invalidity.

– Decision. 
The judge carefully studies the evidence and the law, makes a decision, and writes the sentence (the decision of the court). If the judge reaches moral certitude that invalidity has been proven, s/he makes an affirmative decision and issues a declaration of invalidity. If the judge concludes that the presumption of validity has not been overturned, then the judge makes a negative decision and the marriage bond holds.

– Appeal. 
Both parties and the Defendor of The Bond have a right to appeal the decision rendered by the judge. An appeal court can either ratify the first decision or choose to proceed to an entirely new trial and judgment. 

Does the former spouse have to be contacted?

Since a declaration of invalidity affects both parties to the marriage, the laws of the Church give the former spouse, the respondent, the same rights as the petitioner. For example, the respondent has the right to be notified that a case has been initiated and the grounds thereof; the right to participate in the case by appointing an advocate, giving testimony and naming witnesses; the right to see the evidence; and the right to challenge the decision of the court.

Since the Tribunal is obligated by law to contact the respondent, only very rarely – when the petitioner would be in imminent danger of grave physical harm from the respondent – is the respondent not contacted. In such a case, the violent and abusive behavior of the respondent has to be fully documented by court records, police reports, sworn testimony, etc. The respondent’s “right of defense” must be taken seriously because it is a natural right that has been incorporated into the laws of the Church.

What if the former spouse does not cooperate or cannot be found?

If the former spouse, the respondent, is not willing to participate in this process, or simply ignores the letter of notification, the proceedings will continue. Similarly, if the whereabouts of the respondent are genuinely unknown, the Tribunal will continue its investigation. However, documentation will be required to demonstrate that the respondent’s whereabouts are truly unknown, and an advocate will be appointed to act on his/her behalf. In such situations, more witness testimony may need to be collected.

Is testimony kept confidential?

Because of the sensitive nature of the information that is shared with the Tribunal, the testimony of the parties and witnesses is treated with the greatest confidentiality. Consequently, it is not made available to anyone except as may be authorized by Church law, which states that both parties have the right to review the evidence that was collected, unless the judge determines that access to a particular part of the testimony may cause serious harm.

What are some common grounds for a declaration of invalidity?

– Grave lack of discretion of judgment, at the time of consent, regarding essential rights and duties to be given and received. 
A person was unable to contract marriage due to insufficient foresight, insight and judgment. This may have been because the person was quite young and inexperienced; severely immature; feeling extreme family, cultural or other pressures (due, for example, to a pre-marital pregnancy or pre-marital sexual activity); etc.

– Inability to assume the essential obligations of marriage. 
A person, for some psychological reason, was unable, at the time of consent, to enter into a “partnership of the whole of life.” This may have been because of alcohol or drug abuse, a serious personality disorder or mental illness, or other factors which seriously affect one’s ability to assume and fulfill essential marital obligations.

– Simulation. 
A person intended, at the time of consent, to exclude one or more of the essential elements or properties of marriage, namely, children or fidelity or permanence (maintaining the right to divorce and also the belief that one has the freedom to remarry after divorce) or the community of life (the physical, emotional and spiritual welfare of one’s spouse) or the sacramental dignity of marriage.

– Error. 
A person, at the time of consent, because of a problematic family or personal background and/or a lack of religious formation, did not understand one or more of these Catholic teachings about marriage: (1) it is an exclusive relationship between one man and one woman (unity); (2) it is indissoluble; (3) between the baptized, it has sacramental dignity. Or a person was mistaken about an important quality of the other person and would not have married if s/he had been aware of that quality. Or a person was deceived by fraud about a quality of the other party, which seriously disturbed the marital partnership.

– Force or grave fear. 
A person made a decision to marry because of external force or grave fear, such that only marriage would remove the force or fear.

– Prior bond (ligamen). 
Depending on the circumstances, a person married, divorced and then married again without receiving a decree of invalidity for the first marriage. This requires a modified formal process.

What is a “lack of form” case?

A baptized Catholic who has not left the Church by a formal act must marry in the presence of a Catholic priest or deacon. This is known as the “form” of marriage. If a Catholic does not observe the proper form of marriage, the Church does not recognize the marriage as a valid union. Therefore, a Catholic who was previously married before an official other than a Catholic priest or deacon, who had no dispensation for this marriage, and who did not validate the civil marriage later (commonly but mistakenly referred to as a “blessing”), should submit a petition for lack of form rather than a formal petition.

A lack-of-form case is administrative rather than judicial in nature. Documents can prove that a person who was legally bound to follow the form of marriage did not do so. It normally does not take much time or effort to establish that a Catholic married without the proper form. The Dubuque Tribunal charges $25 to process a lack-of-form petition.

How much does this process cost?

The fee for this process is not a donation to the Church. It is, rather, a fee for professional services rendered. The work of this Tribunal is highly subsidized by the Archdiocese of Dubuque. Hence, the Tribunal asks the petitioner to pay only a fraction of the cost involved in processing a petition seeking a declaration of invalidity. At this time, the fee requested for a formal case is $450. It takes hours and hours of work on the part of the Tribunal staff to process a formal case. The fee that is charged helps pay for such things as the salaries of secretaries and professionally trained judges, rent, maintenance, utilities, office equipment and supplies, postage, etc.

No person is ever denied the services of the Tribunal on the basis of an inability to pay the fee. A petitioner may arrange to send monthly payments, or to have the fee reduced or even waived if there is a serious financial need. Money never affects the speed of the process or the outcome of a case. One does not pay for a declaration of invalidity; one pays for the process used to determine if a marriage is invalid.

How long does this process take?

Cases are processed in the order in which they are presented, and the time it takes to process a case depends on many factors. One frequent cause of delay is the delay of parties and/or witnesses in giving testimony. Also, during the course of the proceedings there are occasions when the parties have a period of time to take certain actions, and sometimes they do not do so in a timely fashion. On average, it takes about 6-12 months to process a case in this Tribunal at the present time, although, depending on the circumstances, a particular case could take longer. When a case is initiated, it is impossible to predict how long it will take to process it, or whether there will be an affirmative decision.

To avoid confusion, anger, embarrassment and hurt, a date cannot be set for another marriage in the Church prior to a final and favorable decision. In addition, a remarried catechumen or candidate for reception into full communion with the Church cannot be baptized or received into the Church until his/her marital status is clarified.

If the Tribunal issues an affirmative decision, can remarriage take place right away?

If a marriage is declared invalid and there are no restrictions concerning remarriage, the usual process of preparing for marriage in the Catholic Church may begin. If, however, the cause of the failure of the first marriage still is or may be present, the Tribunal will be concerned about a future marriage. The Church would not be exercising good pastoral care if she permitted a new marriage while aware of an issue that might cause it to be invalid or be a threat to its success. Therefore, pastoral counseling, and perhaps professional evaluation and counseling, may be required.

What happens if a Catholic marries “outside the Church” without a declaration of invalidity?

Contrary to a common myth, divorced Catholics are not excommunicated. Civil divorce is a civil matter and does not affect the divorced person’s status in the Church. A divorced Catholic, living singly, does not need a declaration of invalidity to participate fully in the Church, including receiving the sacraments of the Church. When there is not a declaration of invalidity, the Church views a divorced person as married, but living apart from his/her spouse.

However, a divorced Catholic who remarries without a declaration of invalidity (“outside the Church”) is unable to receive the sacraments of the Church, since s/he has chosen to separate himself/herself from the communion of the Church. Similarly, a Catholic who marries a divorced person who is not Catholic is unable to receive the sacraments if that person’s previous marriage has not been declared invalid. In both cases, however, Catholics who are unable to receive Holy Communion or serve as liturgical ministers are urged, nonetheless, to participate in the Mass as fully as they can. If a Catholic has remarried without a declaration of invalidity, the subsequent procurement of such a declaration will enable him/her to marry in the Church (validate the civil marriage) and return to a full sacramental life in the Church.

Click here to download a PDF of the text below.

Why are there going to be changes to the marriage nullity process?
Pope Francis has made changes to the procedures for an annulment in an effort to simplify the process and allow more people to receive a just and expeditious judgment to questions regarding the validity of their former marriages. He wants to minimize the amount of time people spend in a state of uncertainty while their case is pending, and allow more people to come back to the full practice of their faith. That is not to say that the existing marriage nullity process is ineffective and/or unduly prolonged. But like any fallible, human process it can and should be reformed when necessary. Pope Francis, working with a commission of experts, has reformed the process in order to make it as accessible as possible, without in any way undermining the integrity of the process or compromising the dignity of marriage.

When will these changes take effect?
The revised laws take effect on December 8, 2015.

What are the major changes?
There are five major changes: (1) new rules regarding which tribunal can judge a case; (2) new requirements for tribunal personnel; (3) the elimination of an automatic review and confirmation of a decision (the requirement of a second affirmative decision); (4) a shorter and more streamlined process for certain rare and exceptional cases, and (5) a change in the approach to recovering tribunal expenses.

How might the rules regarding which tribunal may judge a case affect me?
Not every tribunal can hear every case. A tribunal needs to be competent in order to judge a case. Currently, there are four ways that a tribunal can be competent to hear a case: (1) if the marriage took place in that diocese, (2) if the former spouse lives in that diocese, (3) if the petitioner (the person bringing the case to the tribunal) lives in that diocese and certain other formalities and requirements are observed, and (4) if the majority of the relevant evidence is located in that diocese and certain other formalities and requirements are observed. These regulations were designed to protect the rights of the former spouse. However, in current times with increased mobility and communication technology, these requirements are practically obsolete. At times the current regulations can even be a barrier to parties wishing to begin the process. So, under the revised law, there will be three ways that a tribunal can be competent to hear a case, none of which require any of those extra formalities and requirements: (1) if the marriage took place in that diocese, (2) if either party lives in that diocese, and (3) if for whatever reason the majority of the relevant evidence is located in that diocese. Therefore, if your case is already pending, or if you introduce it before December 8, 2015, the changes will not affect you. If you introduce your petition on or after December 8, 2015, you may have additional options for where to introduce your petition.

How are the requirements for tribunal personnel going to change?
Marriage nullity cases are sometimes tried (heard) before a “college” of three judges, all of whom meet to decide whether or not the marriage is proven invalid. At this time only one of these three judges can be a layperson. Under the new law two of the judges can be laypeople. In the long run, it will make it easier for the tribunal to remain adequately staffed, which is the single most important factor in handling cases in a just, thorough, and expeditious manner.

What does it mean that the requirement of an automatic second affirmative decision is being eliminated?
Currently, any case that receives a first, affirmative decision must automatically go to an appeal court for a second decision before the decision is final. As of December 8, 2015, the first decision will be final. However, both parties and the defender of the bond will retain their right to appeal a first, affirmative decision.

What is the new, shorter process?
Pope Francis wants to make the process for a declaration of nullity easier and more accessible for everyone. The Holy Father has added a shorter process for rare and exceptional cases when the nullity of the marriage is clearly obvious so that these exceptional cases can be handled as expediently as possible.
In order to use the new, shorter process, three strict qualifications have to be met. (1) Both spouses have to petition for it together, or if not, then the other party must at least consent to it. (2) The nullity of the marriage must be obvious. Most marriage nullity cases deal with a defect in marital consent, that is, with an internal act of the will placed when the spouses married. Since the wedding often happened many years earlier, it would be exceptional for such a defect to be clearly obvious today. (3) All the facts that make the marriage clearly null have to be readily available. Currently it is not uncommon that the first criterion is met, but the second and third are both rare, especially in conjunction.
So, it is unlikely that most petitions will qualify for the shorter process. In any case, no one needs to be overly anxious to qualify for the shorter process: as it is, the cases that would qualify for the shorter process are already the cases that are completed the fastest, and qualifying for the shorter process is no guarantee of an eventual declaration of nullity.

How long will this new process take?
Whatever process is used, the marriage nullity process is not something that can be rushed: marriages are complex and unique, and in order to know beyond a reasonable doubt whether a marriage is invalid from the start, it is necessary to gather a great deal of information and to protect the rights of both parties. While various news outlets have suggested that the new process would take 45 days; that is unrealistic. 120 days might be more realistic. We won’t know until we use it.
And, the new process will probably not be used in most cases. It is only an option when, at the time the petition is accepted, all the relevant facts are readily available and clearly demonstrate the nullity of the marriage. In such cases, some of the more time-consuming formalities of the ordinary process could safely be omitted without compromise to the integrity of the process.

Why do many tribunals currently charge for a declaration of nullity?
What many tribunals do as a matter of fairness is pass on some portion of their expenses (salaries, supplies, office space) to the parties who request their services. No one is ever denied his or her rights due to difficulty or inability to pay. Anyone who demonstrates the need for a partial or total reduction of fees receives one.

What did Pope Francis change with regard to tribunal fees and why?
Pope Francis didn’t exactly eliminate all tribunal fees, but he said that the process should be gratuitous whenever that can be done without harming the right of tribunal workers to a just wage. He is asking bishops’ conferences and local bishops to do their best to make tribunal services gratuitous to the parties (of course, they are never free; the costs are just made up from elsewhere). Pope Francis wants to make sure that nobody is ever discouraged from seeking an annulment due to cost. Partial or total reductions have always been granted to anyone who needed them.