Reforming the Annulment Process–A Continuning Conversation. (Or Why “Alienation of Affection” is a stupid reason to require divorce before annulment).

I appreciated the many thoughtful responses to my brainstorming on ways to improve the annulment process.  Regarding my first suggestion; stopping the practice of requiring the couple to seek a civil divorce before filing for a declaration of nullity, a few people suggested that this needed to be in place because of the fear that the church might be sued for alienation of affection.

I actually addressed this issue, briefly,  in the original post as I’ve heard this argument before.  I’d like to address it in a little more detail now.

I will say that, in all humility, I am neither a canonist nor a civil lawyer, so I appreciate that I am not writing in any authoritative manner, but having been around this issue, and discussed it with bishops, canonists, and attorneys at one point or another, I have some insights that I think might contribute to the conversation.

1.  While it is true that some states do still have alienation of affection laws on the books, they are rarely enforced these days.  That said, it can still happen (so adulterers beware).

2.  That said, the alienation of affection that can occur from one’s spouse taking a lover strikes me as a very different matter than a spouse refusing to sleep with one’s mate because a marriage has been found invalid by a tribunal.  Specifically, in this case, the Church is acting like a counselor who says, “Your marriage isn’t healthy.”  That doesn’t cause two people to stop sleeping together.  It may, but it may not.  If the Church were to say that a marriage was invalid, that would not automatically cause the couple to stop sleeping together.  As far as I know, a therapist has never been sued for alienation of affection.  Why would the Church if, in its consultative capacity, it told a couple that their marriage was invalid.  That’s simply a finding of fact, not a command.

3.  You might say, “Well, if the Church finds the marriage invalid, then sleeping together would be a sin and that’s where the alienation of affection occurs.”  That strikes me as silly.  All the Church would have to do to defend itself is show the pre-marital sex rates  (or abortion rates, or adultery rates, or divorce rates, or contraception rates, etc, etc, ) for practicing Catholics.  The simple fact is that the Church making a statement about something compels… absolutely no one to do anything they don’t already want to do.

4.  Finally, the constitutional issues at play in trying to sue the Church for alienation of affection are mind boggling.  I really have a hard time, even in this current Church-hostile culture, imagining that such a suit would pass muster.

At the end of the day, using alienation of affection as an excuse for the Church to not do its job of guiding the faithful through their marital difficulties seems unconscionably cowardly to me.  Seeking legal counsel is one thing. “Pastoring by Lawyer” is, as the scandal has taught us,  quite another.


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About Dr. Greg

Dr. Gregory Popcak directs the Pastoral Solutions Institute, an organization dedicated to helping Catholics find faith-filled solutions to marriage, family, and personal problems. Together with his wife, Lisa, he hosts More2Life Radio. He is the author of over a dozen books integrating psychological insights with our Catholic faith. For more info about books, tele-counseling and other resources, visit

  • James

    And I AM a civil lawyer, licensed in one of the remaining states that DOES have a very active Alienation of Affection law. More about that here: It can impact third parties (“mother-in-lawsuit”).

    No, it’s not my area of expertise, but the joke is that keep the tort around so they can test it on the Bar Exam, which they do every few years.

    While First Amendment concerns would in many cases protect the Church, there is a risk of being dragged into an expensive lawsuit, especially if there was misconduct on the part of a Church official during the process. Even if the Church were to win, the win would come at considerable legal cost and cause a fair amount of public scandal.

    The other case is if a tribunal found an abusive marriage to be valid. If the Church encouraged a spouse to reconcile with an abuser, who eventually did her serious harm, this could expose them to both possible liability and public scandal.

    High risk for questionable benefit = bad idea.

    Canonically, many grounds for annulment do not make the marriage void, but voidable. For example, a couple may marry with no intention of having children, but later change their minds and start a family. Likewise, two Catholics may get married by a Justice of the Peace, then later have the Church convalidate the marriage. In both cases, the marriage was deficient at the start, but later became valid.

    A divorce decree, although not perfect, is a strong indicator that the couple has no intention of reconciling—they have stated so much in a court of law.

  • 1WilliamForester9

    I do not understand your thinking in the matter of alienation of affection or any other cause of action against the United States Council of Bishops. Other countries can take up the legal route as appropriate. Many arguments exist. However, precedents also exist. In the matter of sexual abuse, for example. I’m still baffled by the Church when it comes to nullifying dysfunctional marriages. Domestic violence is a cause worth taking up. I like the idea of Accessory Before the Fact. Why shouldn’t we modernize this thing to fit the community?